Parks v. Cobble

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

BRUCE PARKS, JR., )

)

Plaintiff, )

)

v. ) Case No. 1:22-cv-309

)

WARDEN COBBLE, SGT. JOHNSON, ) Judge Atchley

SGT. WINN, SGT. PETERS, )

SGT. MACE, and ) Magistrate Judge Lee

UNIT MANAGER SIEMS, )

)

Defendants. )

MEMORANDUM & ORDER

Plaintiff, a prisoner in the Tennessee Department of Correction (“TDOC”) housed in the

Bledsoe County Correctional Complex (“BCCX”), has filed an amended pro se complaint under

42 U.S.C. § 1983 [Doc. 8], and two motions for leave to proceed in forma pauperis [Docs. 5 and

7]. For the reasons set forth below, the Court will GRANT Plaintiff’s latest motion for leave to

proceed to in forma pauperis [Doc. 7], DENY Plaintiff’s first motion to proceed in forma pauperis

as moot [Doc. 5], permit Plaintiff’s claim of excessive force to proceed against Sgt. Peters, and

DISMISS all remaining claims and Defendants.

I. MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS

It appears from Plaintiff’s latest motion for leave to proceed in forma pauperis [Doc. 7]

that he is unable to pay the filing fee. Accordingly, pursuant to 28 U.S.C. § 1915, this motion [Id.]

will be GRANTED. Plaintiff’s initial motion for leave to proceed in forma pauperis [Doc. 5] will

be DENIED as moot.

As he is incarcerated, Plaintiff will be ASSESSED the $350.00 civil filing fee. The

custodian of Plaintiff’s inmate trust account will be DIRECTED to submit to the Clerk, United

States District Court, 900 Georgia Avenue, Chattanooga, Tennessee 37402, twenty percent (20%)

of Plaintiff’s preceding monthly income (or income credited to his 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

provide a copy of this Memorandum and Order to the custodian of inmate accounts at the

institution where Plaintiff is now confined and the Court’s financial deputy. This Order shall be

placed in Plaintiff’s file and follow him if he is transferred to another correctional institution.

II. SCREENING OF AMENDED COMPLAINT

A. Standard

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

complaints and shall, at any time, 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 that the Supreme Court set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell

Atlantic 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). 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 and hold them to a less stringent standard than

lawyer-drafted pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972). Even so, formulaic and

conclusory recitations of the elements of a claim do not state a plausible claim for relief. Iqbal,

556 U.S. at 681. Likewise, an allegation that does not raise a plaintiff’s right to relief “above a

speculative level” fails to state a plausible claim. Twombly, 550 U.S. at 570.

B. Plaintiff’s Allegations

On November 4, 2021, Plaintiff was transferred from Northeast Correctional Complex

(“NECX”) to BCCX and placed in a segregation unit “under harsh condition[]s” such as being

limited to two phone calls per week, lack of access to the legal library, 3 showers per week, being

handcuffed upon leaving one’s cell, “not being able to stay groom[ed],” and “being mistreated by

staff” [Doc. 8 p. 4]. Plaintiff maintains that Defendant Cobble, a BCCX associate warden

responsible for the operation of the facility, and Unit Manager Nicole Siems informed Plaintiff

that he was placed in segregation at BCCX because he belonged to a Security Threat Group

(“STG”), and that no other prison would take him due to his “write up” history [Id.].

On November 10, 2022, Plaintiff was moved to a “transient unit” where he allegedly

“should have be[en] all along” [Id.]. Had he not been in segregation, he maintains, the events

giving rise to this lawsuit would not have occurred [Id.].

On June 3, 2022, Sgts. Johnson and Winn found Plaintiff guilty of incident # 1535011, and

Plaintiff was not provided an incident report in accordance with TDOC policy until twenty-eight

days after the fact [Id.].

On November 16, 2022, Sgt. Winn found Plaintiff guilty of incident #1558112, which

involved the presence of medication in Plaintiff’s cell [Id. at 5]. Plaintiff maintains that it was

prescribed medication and not illegitimate drug possession, but that he was nonetheless improperly

found guilty [Id.].

On December 12, 2022, Sgt. Johnson found Plaintiff guilty in incident #1558551, and

Plaintiff was written up for property violation under the reasoning that the serial number of the

television in Plaintiff’s cell did not match what was in the system, even though Plaintiff produced

proof of ownership [Id. at 5]. Plaintiff was subsequently informed that the conviction was

dismissed after Plaintiff’s mother sent email proof [Id.].

Plaintiff maintains that he was harassed and threatened by a non-defendant correctional

officer on December 13, 2022, and that officer ultimately called Sgt. Peters for assistance [Id. at

5]. Plaintiff contends that Sgt. Peters and another officer entered Plaintiff’s cell and threatened

him against speaking to or about Officer Spunuzzi, or else “it wouldn’t be pretty” [Id.]. On

December 26, 2022, Plaintiff was walking from chow, and Sgt. Peters pulled him out of line and

asked if he recalled their earlier conversation [Id.]. Plaintiff responded “no” and asked if he could

go since “there’s nothing to talk about” [Id.]. Plaintiff filled out grievances on “both incidents”

and submitted them on December 21, 2022 [Id.].

On December 31, 2022, while Officer Spunuzzi and Officer Mooneyham were working

the unit, Plaintiff placed a towel on his cell window to use the bathroom [Id. at 6]. “[O]ut of

nowhere” Sgt. Peters and three or four other officers entered Plaintiff’s cell with a tazer pointed at

Plaintiff [Id.]. Plaintiff was ordered to sit on his bunk, Plaintiff raised his hands and asked what

he had done, and Sgt. Peters “forcefully choke[d]” Plaintiff, stood him up, and handcuffed him by

“turning his arms 360” degrees [Id.]. Plaintiff asked if his property could be packed in his

presence, and Sgt. Peters responded that Plaintiff property was “f***” [Id. at 6]. While packing

up Plaintiff’s personal property, a non-defendant officer broke Plaintiff’s television remote in half

and threw his television on the ground [Id. at 8].

Plaintiff was taken to Unit 21-B and placed in a shower1, where he explained the situation

to a nurse and Sgt. Clark [Id. at 6]. Plaintiff’s requests for photographs and an incident report were

denied [Id.]. Second shift personnel advised Plaintiff to make an emergency grievance, which he

did, but the grievance was returned because it was not an emergency matter [Id.]. Plaintiff

informed officers that he was in fear of his safety and requested protective custody, but “nothing

was done” [Id.].

Once more housed in segregation, Plaintiff was advised that he did not have any hygiene

items in his property [Id.]. Plaintiff maintains that numerous officials are aware that he is being

housed without his hygiene products as punishment for Plaintiff stating that Sgt. Peters violated

his constitutional rights [Id. at 6]. Specifically, Plaintiff maintains that Unit Manager Nicole

Siems, who is responsible for the operation of the unit, knows of Plaintiff’s condition and ignores

it “out of hatefulness” [Id.]. On January 5, 2023, Plaintiff called a hotline to report these conditions

[Id. at 6-7].

Plaintiff contends that Defendant Sgt. Mace is the grievance chairman, and that he

purposefully prohibited Plaintiff from filing a number of grievances and/or returning them as

inappropriate [Id. at 7].

Aggrieved of these incidents, Plaintiff seeks monetary damages and an injunction

removing Sgt. Mace as grievance chairperson [Id. at 9].

C. Analysis

1. Res Judicata

1 Plaintiff does not allege that he was tazed during the incident, but his statement that he

was placed in a shower afterwards suggests that he might have been.

The doctrine of res judicata prevents “the parties and their privies from relitigating in a

subsequent proceeding a controversy or issue already decided by a prior valid judgment and from

litigating piecemeal the same controversy.” Westwood Chem. Co., Inc. v. Kulick, 656 F.2d 1224,

1229 (6th Cir. 1981). The doctrine consists of two related concepts: claim preclusion and issue

preclusion. Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 660 (6th Cir.

1990); Taylor v. Reynolds, 22 F. App’x 537, 538-39 (6th Cir. 2001).

Under claim preclusion, “a final judgment on the merits in an action precludes a party from

bringing a subsequent lawsuit on the same claim or cause of action or raising a new defense to

defeat a prior judgment. It precludes not only relitigating a claim or cause of action previously

adjudicated, it also precludes litigating a claim or defense that should have been raised, but was

not, in a claim or cause of action previously adjudicated.” Gargallo, 918 F.2d at 660-61 (internal

citation and citation omitted). “Under issue preclusion, once an issue is actually and necessarily

determined by a court of competent jurisdiction, that determination is conclusive in subsequent

suits based on a different cause of action involving any party to the prior litigation.” Taylor, 22 F.

App’x at 538-39 (citing Montana v. United States, 440 U.S. 147, 153-54 (1979)).

In his prior suit filed February 18, 2022, Plaintiff complained, among other things, of his

placement (and conditions) in a segregation unit upon his transfer to BCCX [See, generally, Doc.

2 in No. 1:22-cv-41]. That action was dismissed for Plaintiff’s failure to state a claim upon which

relief might be granted [See Docs. 5 and 6 in No. 1:22-cv-41]. Plaintiff again complains of his

year-long placement in segregation in this lawsuit [Doc. 8 p. 4]. However, because this Court has

already rejected Plaintiff’s claims related to his placement in segregation upon transfer to BCCX,

the Court finds that the doctrine of res judicata precludes Plaintiff from relitigating them here.

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981) (noting that dismissal for

failure to state a claim upon which relief may be granted qualifies as a decision on the merits);

Allen v. McCurry, 449 U.S. 90, 94 (1980) (holding party cannot relitigate essential issues that were

actually adjudicated in a prior case involving a party to that case). Accordingly, any claims related

to Plaintiff’s placement in segregation and/or the conditions he faced in segregation upon his

transfer to BCCX will be dismissed.

2. Warden Cobble

Plaintiff seeks to hold Defendant Cobble liable in this action because he is responsible for

operating BCCX and ensuring that TDOC policy is followed [See Doc. 8 p. 4]. However, a claim

against Defendant Cobble based on his position as Warden fails to state a claim upon which relief

may be granted under § 1983. Iqbal, 556 U.S. at 676 (noting that “our precedents establish . . .

that Government officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior”); see also Frazier v. Michigan, 41 F. App’x

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

personally involved in the alleged deprivation of federal rights” to state a claim under § 1983).

The Court otherwise notes that even if Plaintiff alleged sufficient facts to suggest that

Warden Cobble is personally involved in ignoring the enforcement of TDOC policy, such

allegations might suggest professional misconduct, but they do not raise an inference of

constitutional misconduct. This is because TDOC policies do not create a protectable liberty

interest, and therefore, failing to follow those policies does not raise an issue of constitutional

significance. Laney v. Farley, 501 F.3d 577, 581 n. 2 (6th Cir. 2007); McVeigh v. Bartlett, No.

94-23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (finding failure to follow policy

directive does not rise to the level of a constitutional violation because policy directives do not

create a protectible liberty interest). Accordingly, neither Defendant Cobble, nor any other

Defendant, may be held liable in a § 1983 action for failing to follow TDOC policy. Accordingly,

Defendant Cobble and any claims related to the failure to follow TDOC policy will be dismissed.

3. Disciplinary Infractions/Hearings

Plaintiff next asserts that Defendants Sgts. Johnson and Winn violated disciplinary hearing

procedures and improperly found him guilty of disciplinary offenses [Doc. 8 p. 4-5].

In a prison disciplinary proceeding, a prisoner does not have “the full panoply of rights due

a defendant” in a criminal prosecution. Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation

omitted). Rather, a prisoner is entitled to the protections of due process only when a sanction “will

inevitably affect the duration of his sentence” or imposes an “atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,

486-87 (1995); see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998). Plaintiff does not allege

that his placement in segregation affected the duration of his sentence, and his mere placement in

segregated confinement does not trigger due process protections. Sandin, 515 U.S. at 486–87

(1995); McMann v. Gundy, 39 F. App’x 208, 209-10 (6th Cir. 2002) (finding five-month

placement in administrative segregation without a hearing did not implicate due process rights).

Further, any failure by Defendants to comply with prison regulations in conducting

Plaintiff’s disciplinary hearing does not raise a constitutional issue, as mandatory language in

prison regulations does not create a liberty interest protected by the Due Process Clause. Rimmer-

Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995).

As to Plaintiff’s allegation of false disciplinary infractions, the Court notes that inmates

possess no right to be free from charges or convictions of prison disciplinary offenses. Wolff, 418

U.S. at 564-71. This is true even if the charge later turns out to be unfounded. Cromer v.

Dominguez, 103 F. App’x 570, 573 (6th Cir. 2004) (“False accusations of misconduct filed against

an inmate do not constitute a deprivation of constitutional rights where the charges are

subsequently adjudicated in a fair hearing.”); Person v. Campbell, No. 98-5638, 1999 WL 454819,

at *1 (6th Cir. June 21, 1999) (“[T]he filing of false disciplinary charges against an inmate does

not constitution a constitutional violation redressable under § 1983.”). Accordingly, Plaintiff has

failed to state a cognizable § 1983 claim related to his allegations concerning disciplinary

infractions and/or hearings, and all such claims will be dismissed.

4. Threats

Plaintiff maintains that he was threatened and harassed at BCCX by various Defendants

and non-defendant officers [See, e.g., Doc. 8 p. 5-6]. However, verbal harassment or threats by

prison officials toward an inmate do not constitute punishment within the meaning of the Eighth

Amendment. Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987); Faulkner v. Davidson Cnty.

Sheriff's Off., No. 3:14-MC-00740, 2014 WL 3723205, at *2 (M.D. Tenn. July 24, 2014)

(“Allegations of threats and verbal abuse do not state cognizable claims under § 1983.”)

Thus, Plaintiff’s allegations that Defendants have harassed and threatened him, although

reflective of unprofessional conduct, do not state a claim of constitutional dimensions. See Ivey,

832 F.2d at 954-55. Accordingly, these claims will be dismissed.

5. Personal Property

Plaintiff maintains that his personal property was confiscated, his television remote (and

possibly his television) broken, and that he has been denied access to hygiene products [Doc. 8 p.

6, 8]. As discussed below, these allegations implicate three different constitutional issues.

a. Deprivation of property

The Court first considers whether Plaintiff has stated a claim by alleging that officers

confiscated his property and either broke it or failed to return it. The United States Supreme Court

has held that the Due Process Clause of the Fourteenth Amendment is not violated when a State

employee randomly deprives an individual of property, provided that the State makes available a

meaningful post-deprivation remedy. Parratt v. Taylor, 451 U.S. 527, 543 (1981), overruled on

other grounds by Daniels v. Williams, 474 U.S. 327 (1986); see also Hudson v. Palmer, 468 U.S.

517, 533 (1984) (extending Parratt’s holding to intentional deprivations of property). Plaintiff

has not pled that Tennessee’s post-deprivation procedures are inadequate for redressing the alleged

wrong as is necessary to sustain his § 1983 claim. See Vicory v. Walton, 721 F.2d 1062, 1063 (6th

Cir. 1983). Additionally, the Court notes that Tennessee law provides for the recovery of personal

property. See McQuiston v. Ward, No. 2001-201-COA-R3-CV, 2001 WL 839037, at * 1 (Tenn.

Ct. App. July 25, 2001) (citing to Tenn. Code. Ann. § 29-30-101 and § 29-30-201). Plaintiff has

not shown that these State remedies are inadequate, and therefore, he has not stated a claim that

would entitle him to relief under § 1983 for the loss of his personal property.

b. Conditions of confinement

Next, Plaintiff alleges that he has been denied his personal hygiene items [See Doc. 8 p. 6].

It is well settled that “the unnecessary and wanton infliction of pain,” inflicted with “deliberate

indifference” to an inmate’s health or safety, violates the Eighth Amendment. Whitley v. Albers,

475 U.S. 312, 320 (1986); Hudson v. McMillan, 503 U.S. 1, 8 (1992). A prison official acts with

deliberate indifference when the official knows of and disregards an excessive risk to inmate health

or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). This standard applies to prison

conditions, as well as to prisoner punishments. See Rhodes v. Chapman, 452 U.S. 337, 345-46

(1981).

However, “[t]he Constitution does not mandate comfortable prisons.” Id. at 349. Rather,

“routine discomfort is part of the penalty that criminal offenders pay for their offenses against

society,” and as such, only “extreme deprivations” that deny a prisoner “the minimal civilized

measure of life’s necessities” will establish a claim. Hudson, 503 U.S. at 8-9 (citations and internal

quotation marks omitted). A short-term deprivation of hygiene items does not deprive an inmate

of “the minimalized civil measure of life’s necessities.” See Rhodes, 452 U.S. at 347; see also

Miller v. Palmer, No. 99-2352, 2000 WL 1478357, at *2 (6th Cir. Sept. 27, 2000) (holding denial

of clean linens for a short period of time does not constitute Eighth Amendment violation);

Williams v. Delo, 49 F.3d 442 (8th Cir. 1995) (holding four-day inmate placement in strip cell

without clothes, water, mattress, legal mail, or hygienic supplies did not violate Eighth

Amendment).

Here, Plaintiff does not indicate what particular hygiene items he has been denied, nor does

he state that he has been denied access to all hygiene items. Rather, he complains that he has not

been permitted access to “his hygiene” items that were in the personal property confiscated by

officers [Doc. 8 p. 6]. Additionally, he does not complain of any associated health issues or injuries

as a result of not having adequate access to hygiene items. Therefore, he has not alleged facts to

permit the Court to plausibly infer that he has been denied any basic human need, and these these

allegations fail to state a claim upon which relief may be granted. See, e.g., Moore v. Chavez, 36

F. App’x 169, 171 (6th Cir. 2002) (holding inmate who failed to allege “extreme discomfort” or

complete denial of “basic elements of hygiene” did not state Eighth Amendment claim).

c. Retaliation

Plaintiff also maintains that his personal property was taken to punish him for complaining

about Sgt. Peter’s conduct, and that Unit Manager Nicole knew of and ignored Plaintiff’s plight

out of “hatefulness” [Doc. 8 p. 6]. These allegations, liberally construed, attempt to allege a

retaliation claim. Such a claim requires Plaintiff to demonstrate that (1) he “engaged in protected

conduct; (2) an adverse action was taken against [him] that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) there is a causal connection between

elements one and two – that is, the adverse action was motivated at least in part by the plaintiff’s

protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).

Even assuming Plaintiff was placed in segregation because he complained about Sgt.

Peters, and that such an act is substantial enough to deter a person of ordinary firmness from

continuing to file grievances, he has not identified facts from which the Court could infer that any

named Defendant acted with a retaliatory motive. See Hill v. Lappin, 630 F.3d 468, 475 (6th Cir.

2010) (“[C]onclusory allegations of [a] retaliatory motive unsupported by material facts will not

be sufficient to state a . . . claim” under § 1983); see also Cantley v. Armstrong, 391 F. App’x 505,

507 (6th Cir. 2010) (quoting Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (affirming

district court’s holding that a prisoner’s complaint was insufficient to demonstrate a causal

relationship between protected activity and adverse action because “‘bare allegations of malice on

the defendants’ parts are not enough to establish retaliation claims’ that will survive § 1915A

screening”). Additionally, Plaintiff has not alleged that Unit Manager Siems was the individual

who ordered Plaintiff placed in segregation, or that she took any action against Plaintiff to ensure

that he was placed in segregation. Therefore, Plaintiff’s allegations will not sustain a claim of

retaliation, and this claim will be dismissed.

6. Grievances

Plaintiff contends that Defendants, and especially Sgt. Mace, have interfered with his

ability to file and successfully resolve grievances [See, generally, Doc. 8 p. 4-7]. Such an

allegation fails to state a claim, however, as inmates have no constitutional right to a grievance

procedure, and they therefore have no interest in having any such grievances satisfactorily

resolved. LaFlame v. Montgomery Cnty. Sheriff’s Dep’t, 3 F. App’x 346, 348 (6th Cir. 2001)

(citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)). Further, Defendant Mace cannot

be held liable for failing to provide Plaintiff with a remedy through the grievance procedure, as

“[t]he ‘denial of administrative grievances or the failure to act’ by prison officials does not subject

supervisors to liability under § 1983.” Grinter v. Knight, 532 F.3d 567, 576 (6th Cir.

2008) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Accordingly, Plaintiff’s

allegations regarding his grievances and/or the grievance procedure fail to state a § 1983 claim,

and they will be dismissed.

7. Excessive Force

Finally, Plaintiff maintains that Sgt. Peters choked him and handcuffed him in an

uncomfortable manner without cause [Doc. 8 p. 6]. In determining whether a prison official’s

conduct violates the Eighth Amendment’s prohibition against excessive force, courts apply a two-

part inquiry: (1) “whether force was applied in a good faith effort to maintain and restore discipline

or maliciously and sadistically for the very purpose of causing harm,” i.e., the subjective

component; and (2) whether the conduct, in context, is sufficient serious to offend “contemporary

standards of decency,” i.e., the objective component. Hudson, 503 U.S. at 6, 9.

The subjective competent requires consideration of the need for the use of force, the

relationship between that need and the force used, the threat reasonably perceived by the official,

and the extent of the injury. Hudson, 503 U.S. at 7. To satisfy the objective component, an inmate

need not prove a serious injury to prove cruel and unusual treatment, but the extent of the injury

may be probative of whether the force was plausibly “thought necessary” in the situation. Wilkins

v. Gaddy, 559 U.S. 34, 37 (2010). However, “not every malevolent touch by a prison guard”

creates a federal claim, and de minimis uses of physical force that are not repugnant to the

conscience of mankind do not violate the Eighth Amendment. Id. (quoting Hudson, 503 U.S. at

9).

Here, Plaintiff alleges facts indicating that officers entered his cell because he was in

violation of facility rules — he had a towel covering his window [Doc. 8 p. 6]. However, he also

alleges that he was compliant with commands once the officers entered, and that he was choked

and roughly handcuffed by Sgt. Peters despite his nonresistance [Id.]. Therefore, making all

reasonable inferences in Plaintiff’s favor at this stage of the litigation, the Court finds Plaintiff has

stated a plausible claim of excessive force against Defendant Sgt. Peters.

III. CONCLUSION

For the reasons set forth above:

1. Plaintiff’s latest-filed motion for leave to proceed in forma pauperis [Doc. 7] is

GRANTED, and Plaintiff’s initial motion [Doc. 5] DENIED as moot;

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

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

fee to the Clerk in the manner set forth above;

4. The Clerk is 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 Court’s financial deputy;

5. Plaintiff has stated a plausible excessive force claim against Sgt. Peters, and this

claim will PROCEED;

6. The Clerk is hereby DIRECTED to send Plaintiff a service packet (a blank

summons and USM 285 form) for Defendant Sgt. Peters;

7. Plaintiff is ORDERED to complete the service packet and return it to the

Clerk’s Office within twenty-one (21) days of entry of this Memorandum and

Order. At that time, the summons will be signed and sealed by the Clerk and

forwarded to the U.S. Marshal for service pursuant to Fed. R. Civ. P. 4;

8. Plaintiff is NOTIFIED that failure to return the completed service packet within

the time required will result in dismissal of this action for want of prosecution

and/or failure to follow Court orders;

9. Defendant shall answer or otherwise respond to the complaint within twenty-one

(21) days from the date of service. If Defendant fails to timely respond to the

complaint, any such failure may result in entry of judgment by default;

10. All remaining claims and Defendants are DISMISSED; and

11. Plaintiff is ORDERED to immediately inform the Court and Defendant or his

counsel of record of any address changes in writing. Pursuant to Local Rule 83.13,

it is the duty of a pro se party to promptly notify the Clerk and the other parties to

the proceedings of any change in his address, to monitor the progress of the case,

and to prosecute or defend the action diligently. E.D. Tenn. L.R. 83.13. Failure to

provide a correct address to this Court within fourteen (14) days of any change in

address may result in the dismissal of this action.

SO ORDERED.

/s/ Charles E. Atchley, Jr.

CHARLES E. ATCHLEY JR.

UNITED STATES DISTRICT JUDGE