Spicer-Banks v. Frazee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

BRANDON SPICER-BANKS, )

)

Plaintiff, )

)

v. ) No.: 3:23-CV-215-KAC-DCP

)

ANNA FRAZEE, )

)

Defendant. )

MEMORANDUM AND ORDER

Plaintiff, an inmate in the custody of the Tennessee Department of Correction (“TDOC”)

currently housed in the Morgan County Correctional Complex (“MCCX”), filed (1) a pro se action

under 42 U.S.C. § 1983 [Doc. 2], (2) a motion for leave to proceed in forma pauperis [Doc. 1],

and (3) a motion to appoint counsel [Doc. 3]. For the reasons set forth below, the Court

(1) GRANTS Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 1]; (2) DENIES

Plaintiff’s motion to appoint counsel [Doc. 3]; and PERMITS Plaintiff to proceed only on his

claim for use of force against Defendant in her individual capacity.

I. MOTION TO PROCEED IN FORMA PAUPERIS

Under the Prison Litigation Reform Act (“PLRA”), a prisoner bringing a civil action may

apply for permission to file suit without prepaying the filing fee. See 28 U.S.C. § 1915(a). It

appears from Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 1] that he lacks the

financial resources to pay the filing fee in a lump sum. Accordingly, under 28 U.S.C. § 1915, the

Court GRANTS the Motion [Doc. 1].

Plaintiff is ASSESSED the civil filing fee of three hundred fifty dollars ($350.00). The

custodian of Plaintiff’s inmate trust account SHALL submit to the Clerk, U.S. District Court, 800

Market Street, Suite 130, Knoxville, Tennessee 37902 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 procedure, the Court DIRECTS the Clerk to provide a

copy of this Memorandum and Order to both the custodian of inmate accounts at the institution

where Plaintiff is now confined and the Court’s financial deputy. This Memorandum and Order

shall be placed in Plaintiff’s prison file and follow him if he is transferred to another

correctional institution.

II. MOTION TO APPOINT COUNSEL

In support of his motion to appoint counsel [Doc. 3], Plaintiff states that he is unfamiliar

with the law, this action is factually and legally complex, and that he will need to conduct discovery

and obtain “video footage” in this case [Doc. 3 at 2-3]. Under 28 U.S.C. § 1915(e)(1), “[t]he court

may request an attorney to represent any person unable to afford counsel.” But “[a]ppointment of

counsel in a civil case is not a constitutional right;” instead, it is a privilege “justified only by

exceptional circumstances.” Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (quoting

Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1522 n.19 (11th Cir. 1983)). A court determines

whether “exceptional circumstances” exists based on the type and complexity of the case, and the

plaintiff’s ability to represent himself. Id. at 606. Plaintiff’s case is not factually or legally

complex. Plaintiff’s filings show that he can adequately represent himself and present his

claims. And nothing about Plaintiff’s status prevents him from conducting discovery at the

appropriate time. Accordingly, Plaintiff has not established that “exceptional circumstances”

exist, see Lavado, 992 F.2d at 606, and the Court DENIES the motion to appoint counsel [Doc. 3].

III. COMPLAINT SCREENING

A. Standard

Under the 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 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)” of the Federal Rules of Civil Procedure. 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).

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.

Twombly, 550 U.S. at 555, 570. Further, formulaic and conclusory recitations of the elements of

a claim that are not supported by specific facts are insufficient to state a plausible claim for relief.

Iqbal, 556 U.S. at 681. However, the Supreme Court has instructed that courts should 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).

B. Allegations of Complaint

According to Plaintiff, on December 27, 2022, he was inside cell 105 at the MCCX using

the telephone when he threw fecal matter toward cell 107 and accidentally struck Defendant

Corporal Anna Frazee in the back [Doc. 2 at 3-4]. Defendant Corporal Frazee “calmly” walked to

Plaintiff’s door and spoke with him before walking toward cell 107 [Id. at 4]. She then returned

to Plaintiff’s cell and requested the telephone from Plaintiff so that “she could secure [his] mid-

level pie flap” [Id.]. Plaintiff refused Corporal Frazee’s order, and the two began to struggle for

the telephone [Id.]. When Corporal Frazee could not get the telephone away from Plaintiff, she

began spraying Plaintiff with pepper spray [Id.]. Plaintiff used his jacket to block the pepper spray

from getting in the cell, but he eventually gave Corporal Frazee the telephone and allowed her to

secure the pie flap [Id.]. Once Plaintiff’s cell was secured, Corporal Frazee walked away from

Plaintiff’s cell door [Id.].

Plaintiff walked to the middle of his cell and threw his jacket under the bed [Id.]. Plaintiff

then heard Defendant Corporal Frazee demand that a correctional officer give her a can of pepper

spray [Id.]. Moments later, Corporal Frazee began “emptying another can” of pepper spray under

Plaintiff’s cell door while yelling, “Payback is a motherf[**]ker. You black piece of sh[*]t. You

monkey” [Id.]. Plaintiff felt like he was suffocating [Id.].

Moments later, Plaintiff was taken to medical for decontamination [Id.] But he was “only

treated for” an inexplicably bleeding finger [Id. at 4-5]. Plaintiff was moved to a different unit

where he used a hidden washcloth to “clean off” [Id. at 5]. Later that same night, Plaintiff “ended

up on suicide watch” and stayed in the shower for hours [Id.]. “Not to[o] long after[,]” Plaintiff

began experiencing blurriness in his right eye, which lasted for several months [Id.].

Plaintiff asserts that “[t]here was no justification for the second administration of chemical

agents up under [his] cell door” [Id.]. Plaintiff filed this suit asserting that Defendant Corporal

Frazee engaged in the “unjustified and excessive use of pepper spray in violation of the 8th

Amendment” and seeking an award of compensatory and punitive damages for Defendant’s

alleged excessive use of force [Id. at 5-6].

C. Analysis

A claim for violation of 42 U.S.C. § 1983 requires a plaintiff to establish that a “person”

acting “under color of” state law deprived him of “any rights, privileges, or immunities secured by

the Constitution and laws” of the United States. 42 U.S.C. § 1983. Plaintiff does not identify

whether he brings this action against Defendant Corporal Frazee in her official capacity, individual

capacity, or both. Typically, “[a]bsent a specification of capacity, it is presumed that a state official

is sued in his official capacity.” Northcott v. Plunkett, 42 F. App’x 795, 796 (6th Cir. 2002) (citing

Wells v. Brown, 891 F.2d 591, 593 (6th Cir. 1989)). Nevertheless, to Plaintiff’s benefit, the Court

presumes that Plaintiff intended to pursue this suit against Defendant in both her official and

individual capacities.

1. Official Capacity

Defendant Frazee is employed at the MCCX [See Doc. 2 at 3]. MCCX is a state prison

under the control of the TDOC. See Tennessee Dep’t of Corr., State Prison List,

https://www.tn.gov/correction/state-prisons/state-prison-list.html (last accessed September 7,

2023). Therefore, a suit against Defendant in her official capacity, is essentially a suit against

TDOC itself and the state of Tennessee. See Hix v. Tenn. Dep’t of Corr., 196 F. App’x 350, 355

(6th Cir. 2006) (holding TDOC is equivalent of the “State”); see also Kentucky v. Graham, 473

U.S. 159, 166 (1985) (holding that “an official-capacity suit is, in all respects other than name, to

be treated as a suit against the entity”). But Tennessee is not subject to suit because “a State is not

a person within” Section 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989);

see also Hix, 196 F. App’x at 355 (TDOC is not a “person” within the meaning of Section 1983).

Moreover, the Eleventh Amendment prohibits suits against a state or its agencies in federal

court for damages, unless Congress has abrogated the state or agencies’ immunity, or the state has

expressly waived immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-

101 (1984); Quern v. Jordan, 440 U.S. 332, 345 (1979). This immunity extends to claims for

injunctive and equitable relief. See Lawson v. Shelby Cnty., 211 F.3d 331, 335 (6th Cir. 2000)

(“[T]he [Eleventh] Amendment prohibits suits against a ‘state’ in federal court whether for

injunctive, declaratory[,] or monetary relief.”). The State of Tennessee has not waived its

immunity to suit under Section 1983. Berndt v. State of Tenn., 796 F.2d 879, 881 (6th Cir. 1986).

Because Plaintiff cannot maintain suit against the State of Tennessee, he likewise cannot maintain

suit against TDOC personnel, including Defendant, in her official capacity. See WCI, Inc. v. Ohio

Dep’t of Pub. Safety, 18 F.4th 509, 513-14 (6th Cir. 2021) (holding state officials sued in their

official capacity are immune from suit under doctrine of sovereign immunity absent consent).

Accordingly, the Court DISMISSES all claims against Defendant in her official capacity.

2. Individual Capacity

a. Use of Force

Plaintiff asserts that Defendant Corporal Frazee’s second administration of pepper spray

against him violated his rights under the Eighth Amendment [See Doc. 2 at 5-6]. The Eighth

Amendment provides that “Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The Fourteenth Amendment

incorporated the Eighth Amendment against the States. See Robinson v. California, 370 U.S. 660,

666-67 (1962). The Eighth Amendment’s “ban on cruel and unusual punishment prohibits the

‘unnecessary and wanton infliction of pain’ on prisoners.” Johnson v. Sootsman, --- F.4th ---, 2023

WL 5274516, *4 (6th Cir. Aug. 16, 2023) (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).

This has both a subjective and objective component. Id. In the “use-of-force context,”

subjectively, “prisoners who challenge a correctional officer’s use of force must prove more than

that the officer acted with ‘deliberate indifference’ to whether the force was necessary.” Id.

(citations omitted). It is “force used maliciously and sadistically to cause harm” that violates the

Eighth Amendment. See id. (citations and quotations omitted). Objectively, the prisoner “need

not prove extreme or serious harms” because “the malicious and sadistic infliction of pain violates

. . . contemporary standards [of decency] whether or not the pain leads to any significant

injury.” Id. at *5. Here, Defendant’s allegations are sufficient to state a plausible Section 1983

claim under the Eighth Amendment for use of force. Accordingly, Plaintiff’s Eighth Amendment

use of force claim against Defendant in her individual capacity may PROCEED.1

b. Language

Plaintiff does not state that he seeks to sue Defendant Corporal Frazee for her alleged use

of unacceptable language [See Doc. 2]. But if he did, the allegations in his Complaint would fail

to state a Section 1983 claim. Verbal harassment or threats toward an inmate alone do not

constitute “punishment” within the meaning of the Eighth Amendment. See 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.”). Accordingly, to the extent that Plaintiff intended to

raise such a claim, the Court DISMISSES that claim.

IV. CONCLUSION

As set forth above:

1. The Court GRANTED Plaintiff’s motion for leave to proceed in forma

pauperis [Doc. 1];

1 Plaintiff did not challenge Defendant Corporal Frazee’s first administration of pepper

spray to restore order when Plaintiff was noncompliant and in a physical altercation with

Defendant [See Doc. 2]. But if he had, the Complaint fails to allege facts sufficient to state an

Eighth Amendment use of force claim. See Johnson, 2023 WL 5274516 at *4.

2. The Court DIRECTED the custodian of Plaintiff’s inmate trust account to submit

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

3. The Court DIRECTED the Clerk to provide 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;

4. The Court PERMITTED Plaintiff’s Eighth Amendment use of force claim against

Defendant Corporal Anna Frazee in her individual capacity to PROCEED; and

5. The Court DISMISSED Plaintiff’s remaining claims.

In addition, the Court:

1. DIRECTS the Clerk to send Plaintiff a service packet (a blank summons and USM

285 form) for Defendant Corporal Anna Frazee;

2. ORDERS Plaintiff to complete the service packet and return it to the Clerk’s

Office within twenty-one (21) days of entry of this 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 Federal Rule of Civil Procedure 4;

3. NOTIFIES Plaintiff that if he fails to timely return the completed service packet,

this action will be dismissed;

4. ORDERS Defendant to 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, it may result in entry of judgment by default against her;

5. ORDERS Plaintiff to immediately inform the Court and Defendant, or her counsel

of record, of any address change in writing. Under 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.

ENTER: s/ Katherine A. Crytzer

KATHERINE A. CRYTZER

United States District Judge