Perry v. Parris

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

DEANTHONY PERRY, )

)

Plaintiff, )

)

v. ) No.: 3:20-CV-359-TAV-HBG

)

MIKE PARRIS, Warden, and )

C.O. BOWLEN, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

The Court is in receipt of a pro se prisoner’s complaint under 42 U.S.C. § 1983 [Doc. 1]

and motion for leave to proceed in forma pauperis [Doc. 5]. The Court will address Plaintiff’s

motion prior to screening the complaint in accordance with the Prison Litigation Reform Act.

I. APPLICATION TO PROCEED IN FORMA PAUPERIS

It appears from the motion for leave to proceed in forma pauperis that Plaintiff lacks

sufficient financial resources to pay the filing fee. Accordingly, pursuant to 28 U.S.C. § 1915,

this motion [Doc. 5] will be GRANTED.

Because Plaintiff is an inmate at the Morgan County Correctional Complex, he is

ASSESSED the civil filing fee of $350.00. The custodian of Plaintiff’s inmate trust account

is DIRECTED to submit to the Clerk, U.S. District Court, 800 Market Street, Suite 130,

Knoxville, Tennessee 37902 as an initial partial payment, whichever is the greater of: (a)

twenty percent (20%) of the average monthly deposits to Plaintiff’s inmate trust account; or

(b) twenty percent (20%) of the average monthly balance in his inmate trust account for the

six-month period preceding the filing of the complaint. 28 U.S.C. § 1915(b) (1) (A) and (B).

Thereafter, the custodian of Plaintiff’s inmate trust account is directed to submit twenty percent

(20%) of Plaintiff’s preceding monthly income (or income credited to Plaintiff’s trust account

for the preceding month), but only when such monthly income exceeds ten dollars ($10.00),

until the full filing fee of three hundred fifty dollars ($350.00) as authorized under 28 U.S.C.

§ 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).

To ensure compliance with this fee-collection procedure, the Clerk will be

DIRECTED to mail a copy of this memorandum and order to the custodian of inmate accounts

at the institution where Plaintiff is now confined, and to the Attorney General for the State of

Tennessee. This order shall be placed in Plaintiff’s prison file and follow him if he is

transferred to another correctional institution. The Clerk also will be DIRECTED to provide

a copy to the Court’s financial deputy.

II. SCREENING

A. Plaintiff’s Allegations

Plaintiff, a maximum-security inmate at the Morgan County Correctional Facility

(“MCCX”), was on phase two of the restrictive house step-down program (“RHSDP”) as of

May 13, 2020 [Doc. 1 p. 3-4]. On that date, between 12:40 and 1:15 p.m., during a RHSDP

session, Plaintiff was assaulted by inmate Demario Driver, another maximum-security inmate

enrolled in RHSDP [Id. at 4].

During group RHSDP sessions, each inmate is shackled alone at a table to prevent

physical interaction with the other inmates [Id.]. On May 13, 2020, Driver’s handcuffs and

shackles were not double locked as required by policy [Id. at 4-5]. This allowed Driver to

remove his handcuffs and shackles, strike Plaintiff multiple times in the face, and repeatedly

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slam Plaintiff’s head into the table [Id. at 4]. There were no officers present in the pod during

the attack [Id.].

As the attack was occurring, the class instructor went to the front door of the pod to

notify security personnel, who “acted reluctant to come into the pod” [Id.]. When security

personnel entered the pod, Driver ran to his cell and locked his door [Id. at 5]. Driver was not

issued disciplinary charges, and no investigation into the event occurred [Id.].

Plaintiff contends that Warden Parris was negligent by failing to require security

personnel in the pod while twelve maximum-security inmates were out of their cells, and he

alleges that the failure to have an officer present in the pod is a violation of policy [Id.].

Plaintiff also maintains that Defendants’ failure to ensure that policy was followed constitutes

deliberate indifference under the Eighth Amendment, and the tort of negligence under

Tennessee law [Id. at 6]. Plaintiff asks the Court to award him declaratory and monetary relief

[Id. at 7].

B. Screening Standard

Under the Prison Litigation Reform Act (“PLRA”), district courts must screen prisoner

complaints and sua sponte dismiss any claims that are frivolous or malicious, fail to state a

claim for relief, or are against a defendant who is immune. See, e.g., 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A; Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). The

dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009)

and in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) “governs dismissals for failure state a

claim under [28 U.S.C. §§ 1915(e)(2)(B) and 1915A] because the relevant statutory language

tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010).

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Thus, to survive an initial review under the PLRA, a complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 570).

Courts liberally construe pro se pleadings filed in civil rights cases and hold them to a

less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S.

519, 520 (1972). Allegations that give rise to a mere possibility that a plaintiff might later

establish undisclosed facts supporting recovery are not well-pled and do not state a plausible

claim, however. Twombly, 550 U.S. at 555, 570. Further, formulaic and conclusory recitations

of the elements of a claim which are not supported by specific facts are insufficient to state a

plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish that he was

deprived of a federal right by a person acting under color of state law. Braley v. City of Pontiac,

906 F.2d 220, 223 (6th Cir. 1990) (stating that “Section 1983 does not itself create any

constitutional rights; it creates a right of action for the vindication of constitutional guarantees

found elsewhere”).

C. Analysis

Plaintiff does not indicate whether he is suing Defendants in their individual capacities,

official capacities, or both. Out of an abundance of caution, the Court construes Plaintiff’s

complaint to raise allegations against Defendants in both their official and individual

capacities.

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1. Official-Capacity

A suit against a defendant in his or her official capacity is treated as an action against

the governmental entity the officer represents. See Kentucky v. Graham, 473 U.S. 159, 166

(1985) (holding “an official-capacity suit is, in all respects other than name, to be treated as a

suit against the entity”); Barber v. City of Salem, 953 F.2d 232, 237 (6th Cir. 1992). In an

action against an officer acting in an official capacity, “the plaintiff seeks damages not from

the individual officer, but from the entity from which the officer is an agent.” Pusey v. City of

Youngstown, 11 F.3d 652, 657 (6th Cir. 1993). Defendants are employees of MCCX, a State

prison within the Tennessee Department of Correction system. Therefore, Plaintiff’s claim

against Defendants in their official capacities is asserted against the State of Tennessee.

However, the Eleventh Amendment to the United States Constitution bars Plaintiff’s

claims for damages against the State, regardless of the nature of the relief sought. See Seminole

Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984); Berndt v. State of Tennessee, 796 F.2d 879, 881 (6th Cir.

1986) (noting that Tennessee has not waived immunity to suits under § 1983). Therefore, all

claims against Defendants in their official capacities will be DISMISSED.

2. Individual-Capacity

a. CO Bowlen

Plaintiff’s complaint is bereft of any mention of CO Bowlen’s role in Plaintiff’s alleged

assault. As such, the complaint has failed to state a cognizable claim against CO Bowlen in

his individual capacity, and he will be DISMISSED. See, e.g., Frazier v. Michigan, 41 F.

App’x 762, 764 (6th Cir. 2002) (providing that “a complaint must allege that the defendants

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were personally involved in the alleged deprivation of federal rights” to state a claim upon

which relief may be granted).

b. Warden Mike Parris

Plaintiff next contends that Warden Parris negligently failed to ensure that security

personnel were in the pod during the RHSDP session, and that his failure to supervise his

officers to ensure policy was followed led to the assault on Plaintiff [See Doc. 1 p. 6].

However, the Sixth Circuit has held that government officials may be individually liable under

§ 1983 for a failure to supervise only if they “either encouraged the specific incident of

misconduct or in some other way directly participated in it.” Harvey v. Campbell Cnty., Tenn.,

453 F. App’x 557, 563 (6th Cir. 2011); see also Greene v. Barber, 310 F.3d 889, 899 (6th Cir.

2002) (explaining that “[s]upervisory liability under § 1983 does not attach when it is premised

on a mere failure to act; it ‘must be based on active unconstitutional behavior’”) (quoting Bass

v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). Plaintiff’s allegations against Warden

Parris do not suggest any personal involvement in the events leading up to the alleged assault

on Plaintiff, nor does Plaintiff contend that Warden Parris actively encouraged a failure to

follow policy. Therefore, Plaintiff cannot sustain a § 1983 action against Warden Parris in his

individual capacity.

Moreover, the Court notes that while prison officials have a duty to protect inmates

from violence and take reasonable measures to protect their safety, see Farmer v. Brennan,

511 U.S. 825, 832-33 (1994), an officer cannot be liable for failure to protect an inmate unless

he knew of a substantial risk to the inmate and disregarded it. See id. at 837; Adames v. Perez,

331 F.3d 508, 512 (5th Cir. 2003). Because an officer must subjectively be aware of a

substantial risk in order for liability to attach, an officer lacks liability when an inmate is a

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victim of an unforeseeable attack. Tucker v. Evans, 276 F.3d 999, 1001 (8th Cir. 2002).

Therefore, an officer’s negligence or dereliction of duty cannot be the basis of a failure-to-

protect claim. See Daniels v. Williams, 474 U.S. 327 (1986) (holding negligence does not state

§1983 cause of action).

Here, Plaintiff concedes that each inmate was handcuffed and shackled to a separate

table during the RHSDP session, and there is nothing in Plaintiff’s complaint that would allow

the Court to infer that prison officials knew or should have known that Inmate Driver posed a

risk to Plaintiff, or that he was capable of slipping out of both sets of restraints. Therefore,

Plaintiff has not alleged a set of facts that would allow § 1983 liability to be imposed against

any MCCX official for the alleged assault on May 13, 2020.

3. State-Law Claims

Plaintiff also purports to hold Defendants liable for negligence, and for the assault and

battery against him under the laws of the State of Tennessee. Section 1983 does not provide

redress for violations of State law, however. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.

1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Inasmuch as there are no

surviving federal claims in this action, Plaintiff’s State-law claims will be DISMISSED

without prejudice. See 28 U.S.C. § 1367(c).

III. CONCLUSION

For the reasons set forth above:

1. Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 5]

is GRANTED;

2. Plaintiff is ASSESSED the civil filing fee of $350.00;

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3. The custodian of Plaintiff’s inmate trust account is DIRECTED to submit the

filing fee to the Clerk in the manner set for above;

4. The Clerk is DIRECTED to mail a copy of this memorandum opinion and order

to the custodian of inmate accounts at the institution where Plaintiff is now

confined, to the Attorney General for the State of Tennessee, and to the Court’s

financial deputy;

5. Plaintiff has failed to state a claim upon which relief may be granted under

§ 1983, and this action is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

and 1915A;

6. All State-law claims are DISMISSED without prejudice; and

7. The Court CERTIFIES that any appeal from this action would not be taken in

good faith and would be totally frivolous. See Rule 24 of the Federal Rules of

Appellate Procedure.

IT IS SO ORDERED.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

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