Ettienne v. Lopez

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

RONALD ETTIENNE, )

)

Plaintiff, )

)

v. ) No. 1:23-CV-244-TAV-CHS

)

CHRISTIAN LOPEZ, KEVIN YORK, )

BRANDON BARNES, TOMMY )

MAYNARD, JACKIE MATHENY JR., )

ZACK POSTHUMMUS, JANICE )

CORNETT, KELLWELL FOOD )

MANAGEMENT, WARREN )

COUNTY D.B.A. WARREN COUNTY )

DETENTION CENTER, and )

RONIESHA SANDERS, )

)

Defendants. )

MEMORANDUM OPINION & ORDER

Plaintiff, a Tennessee Department of Correction inmate formerly housed in the

Warren County Jail, has filed (1) a pro se complaint for violation of 42 U.S.C. § 1983

arising out of incidents during his Warren County Jail confinement [Doc. 2], in which he

also requests appointment of counsel [Id. at 16–17]; (2) a motion for leave to proceed in

forma pauperis [Doc. 1]; and (3) a motion to issue subpoenas [Doc. 4], all of which are

now before the Court. The Court will address Plaintiff’s request for appointment of counsel

[Doc. 2, pp. 16–17] and motion for leave to proceed in forma pauperis [Doc. 1] before

screening his complaint [Doc. 2] and addressing his motion to issue subpoenas [Doc. 4].

I. Appointment of Counsel

In his complaint, Plaintiff requests appointment of counsel because (1) Defendants

have refused his requests for documents regarding their policies and procedures related to

his claims, and (2) he lacks legal training and is indigent, which he states are “typical[]”

characteristics of pro se prisoner plaintiffs [Doc. 2, pp. 16–17]. For the following reasons,

this request for counsel is DENIED.

Appointment of counsel in a civil proceeding is not a constitutional right, but a

privilege justified only in exceptional circumstances. Lavado v. Keohane, 992 F. 2d 601,

605‒06 (6th Cir. 1993). A district court has discretion to determine whether to appoint

counsel for an indigent plaintiff. Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992). In

exercising that discretion, the district court should consider the nature of the case, whether

the issues are legally or factually complex, and the plaintiff’s ability to present his claims.

Lavado, 992 F.2d at 605–06.

As to the first two factors, this is a complaint for violation of § 1983 arising out of

events during Plaintiff’s incarceration [Doc. 2, pp. 8–11], none of which are factually or

legally complex. As to the third factor, it is apparent that Plaintiff can adequately present

his claims. Also, while Plaintiff asserts that Defendants have refused his requests for

documents showing their policies and practices related to his claims, this does not render

his case exceptional, as it is not customary for parties to engage in discovery prior to a

lawsuit. Moreover, as Plaintiff acknowledges, his lack of legal training and indigency are

typical of prisoners acting pro se.

2

Thus, Plaintiff has not established that this is an exceptional case that justifies the

Court appointing him counsel, and his request for appointment of counsel [Id. at 16–17] is

DENIED.

II. Motion for Leave to Proceed In Forma Pauperis

As it appears from his motion for leave to proceed in forma pauperis [Doc. 1] that

Plaintiff is unable to pay the filing fee in one lump sum, this motion is GRANTED.

Plaintiff is ASSESSED the civil filing fee of $350.00. 28 U.S.C. § 1914(a). The

custodian of Plaintiff’s inmate trust account is DIRECTED to submit to the Clerk, U.S.

District Court, 900 Georgia Avenue, Chattanooga, Tennessee 37402, as an initial partial

payment, whichever is the greater of: (a) twenty percent (20%) of the average monthly

deposits to his 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 his 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 has been paid to

the Clerk. 28 U.S.C. § 1915(b)(2).

The Clerk is DIRECTED to send a copy of this order to the Court’s financial deputy

and the custodian of inmate trust accounts at Plaintiff’s facility to ensure compliance with

the Prison Litigation Reform Act (“PLRA”) requirements for payment of the filing fee.

3

III. Complaint Screening

A. Standard

Under the 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 28 U.S.C. §§ 1915(e)(2)(B) and

1915A; Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). The dismissal standard 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 to 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 a PLRA initial review, 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).

Formulaic and conclusory recitations of the elements of a claim do not state a

plausible claim for relief. Id. 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. However, 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).

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 a federal right. 42 U.S.C. § 1983.

4

B. Allegations

In his complaint, Plaintiff sets forth four separate incidents for which he seeks

§ 1983 relief [Doc. 2, pp. 8–11]. The Court summarizes these incidents in the same order

as Plaintiff.

In the first incident, Plaintiff claims that an inmate who was “under the supervision

of Janice Cornett who works for Kellwell Food Management” defecated on the floor of a

“cooler/freezer” [Id. at 8]. But jail officials did not discard all the food in the cooler/freezer

and served some of that food to inmates, which Plaintiff claims risked inmates’ health.

Plaintiff then claims that Defendants Sheriff Matheny, Lopez, and Kellwell Food

Management, as well as other unnamed jail officials, all acting in their official and

individual capacities, failed to properly investigate this incident, denied equal protection,

and committed acts of official misconduct and retaliation [Id.]. Plaintiff supports his

retaliation allegation by stating that these individuals and entities took his personal property

due to this and other incidents [Id. at 9].

In the second incident, Plaintiff states that after an inmate “[s]upposedly . . .

over[]dosed on drugs,” jail officials moved certain inmates to the recreation yard to search

their pod [Id.]. When jail officials brought the inmates back inside after this search,

“several inmates noticed some of their property was missing.” Unspecified inmates

confronted Defendant Lopez about the missing property, and Defendant Lopez stated that

other cells also were missing property, and that he guessed they were “all missing

something” [Id.]. Plaintiff claims that Defendant Lopez’s failure to investigate this

5

incident caused him to lose property and violated his Eighth Amendment rights [Id. at 10].

Plaintiff additionally claims that this incident caused him to be “confined to his cell for 75

hours without being able to shower, exercise[,] or use the phones.” According to Plaintiff,

“[t]he pod search yielded no illegal drugs or foul play,” and jail officials never proved that

drugs caused the inmate health issue that led to that search. Nevertheless, since then,

inmates have been segregated and locked down twenty-three hours a day without any

explanation, write ups, or disciplinary forms. Defendant Lopez also took the inmates’ legal

tablet [Id. at 11]. Plaintiff claims that these incidents violate his Eighth Amendment and

due process rights, and that Defendant Matheny is responsible for these occurrences due to

his failure to supervise Defendant Lopez [Id. at 10].

In the third event, Plaintiff claims that he “wrote a grievance” against Defendant

Posthummus because Plaintiff had properly sought forms to file a complaint against the

jail two weeks earlier but had not received them [Id. at 11]. However, Defendant

Posthummus answered that grievance, which Plaintiff states violated his right to due

process [Id.].

In the fourth event, Plaintiff complains that he sent in an inmate trust account

certificate form through a jail official to Defendant Sanders, but she refused to sign the

form [Id.]. Plaintiff states that he sent the form in anyway [Id.].

After Plaintiff describes the four incidents underlying his complaint, he sets forth

various legal standards, arguments, and citations [Id. at 13–16]. He also seeks issuance of

subpoenas and states that Defendants will not release documents regarding their policies

6

and practices regarding the events in the complaint [Id.]. Plaintiff contends that he “is not

merely pos[i]ting a theory of legal liability that is unsupported by specific factual

allegations” but instead lacks legal training and is indigent [Id. at 16].

Plaintiff then states that he has sued Defendant Christian Lopez in his official

capacity only, Defendant Kellwell Food Management in its official and individual

capacities, Defendant Kevin York in his official capacity only, Defendant Brandon Barnes

in his official capacity only, Defendant Jackie Matheny in his official and individual

capacities, Defendant Zack Posthummus in his official and individual capacities,

Defendant Janice Cornett in her individual capacity only, Defendant Warren County in its

official capacity, and Defendant Roniesha Sanders in her official and individual capacities

[Id. at 3–5]. However, Plaintiff later states that he has sued all Defendants in their official

capacities [Id. at 15]. As relief, Plaintiff seeks one million dollars for his pain and suffering,

and for Warren County Jail conditions “to come to code [with] proper living conditions for

other inmate(s) th[a]n himself that are confined to custody” [Id. at 12].

C. Analysis

For the reasons set forth below, the complaint fails to state a claim upon which relief

may be granted under § 1983.

1. Cooler/Freezer Incident

In the first incident Plaintiff sets forth in his complaint, he asserts that after an inmate

defecated in a jail cooler/freezer, jail officials did not throw away all the food in that

cooler/freezer and fed some of it to inmates, which he claims risked the inmates’ health

7

[Id. at 8]. Plaintiff then claims that Defendants Sheriff Matheny, Lopez, and Kellwell Food

Management, as well as other unnamed jail officials, failed to properly investigate this

incident [Id. at 9]. In the portion of his complaint setting forth this incident, Plaintiff also

refers to equal protection, official misconduct, and retaliation, specifically stating that jail

officials and entities retaliated against him by taking his personal property due to this and

other incidents [Id.].

But while Plaintiff generally states that the food from the cooler/freezer that jail

officials fed to inmates after this incident posed a health risk to these inmates, he does not

state that jail officials served this food to him, and he cannot assert the constitutional rights

of other inmates. Newsom v. Norris, 888 F.2d 371, 381 (6th Cir. 1989) (holding that a “a

prisoner who initiates a civil action challenging certain conditions at a prison facility in his

individual capacity is limited to asserting alleged violations of his own constitutional rights

and . . . lacks standing to assert the constitutional rights of other prisoners”).

And even if the Court assumes that jail officials served Plaintiff food from the

cooler/freezer, he provides no facts from which the Court can plausibly infer that any

Defendant violated Plaintiff’s constitutional rights by doing so. It is well-settled that prison

officials must take reasonable measures to protect prisoners’ safety. Farmer v. Brennan,

511 U.S. 825, 832–33 (1994). Liability attaches to a prison official’s failure to protect a

prisoner where the prisoner was “incarcerated under conditions posing a substantial risk of

serious harm,” and the prison official acted with deliberate indifference to the prisoner’s

safety. Id. at 834. “Deliberate indifference” means that a prison official is liable only

8

where he knows that the inmate faces a substantial risk of serious harm and disregards that

risk. Id. at 837 (quotation marks omitted). Plaintiff, however, does not allege or suggest

that the food products that were in the cooler/freezer when the inmate defecated and that

jail officials served to inmates came into any contact with the feces. Accordingly, this

claim is purely speculative, and it fails to state a plausible claim for violation of Plaintiff’s

constitutional rights.

Additionally, while Plaintiff claims that various Defendants failed to properly

investigate this incident and refers generally to equal protection, official misconduct, and

retaliation, he fails to provide any facts from which the Court can plausibly infer that any

Defendant violated his § 1983 rights based on these conclusory claim references, as set

forth more fully below.

First, Plaintiff did not have a constitutional right to a proper investigation of the

cooler/freezer incident. Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007) (“There is

no statutory or common law right, much less a constitutional right, to an investigation.”

(citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973))); Frodge v. City of Newport,

501 F. App’x 519, 532 (6th Cir. 2012) (providing that a “failure to act . . . do[es] not

constitute ‘active constitutional behavior’ as required [to violate § 1983] and thus, [is] not

actionable” under § 1983 (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.

1999))).

Next, Plaintiff does not set forth any facts to support a plausible inference that any

Defendant violated his right to equal protection based on the cooler/freezer incident. Ctr.

9

For Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (finding that

a complaint failed to state an Equal Protection claim where it did not “make a plausible

allegation that similarly situated organizations and individuals, of a different political

viewpoint, have not been subject to the same alleged treatment by Defendants.”).

Similarly, Plaintiff’s general reference to “official misconduct” does not allow the

Court to plausibly infer a violation of his constitutional rights. Ashcroft v. Iqbal, 556 U.S.

662, 681 (2009) (formulaic recitations of a claim are insufficient to plausibly state a claim

for relief).

Likewise, Plaintiff does not set forth any facts from which the Court can plausibly

infer that any Defendant took any action against him due to his protected conduct during

or related to this incident, as required to state a plausible § 1983 retaliation claim.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (providing that a retaliation claim

has three elements (1) “the plaintiff engaged in protected conduct”; (2) the defendant took

a sufficiently serious adverse action that would deter a prisoner of “ordinary firmness”

from continuing to engage in the protected conduct against the plaintiff; and (3) the

plaintiff’s protected conduct motivated the adverse action at least in part).

As such, Plaintiff’s allegations regarding the cooler/freezer incident fail to allow the

Court to plausibly infer any violation of § 1983, and they are DISMISSED.

2. Pod Search

The second incident underlying the complaint arises out of a pod search due to a

suspected inmate overdose. Plaintiff claims that this search resulted in (1) loss of property

10

for him and others, which Defendant Lopez did not investigate; (2) him being confined to

his cell without a shower, exercise, or phone access for seventy-five hours; (3) the pod

being segregated and locked down twenty-three hours a day; and (4) loss of the inmates’

legal tablet. Plaintiff also asserts that Defendant Lopez’s failure to investigate this incident

caused him to lose property and violated both his Eighth Amendment rights and his right

to due process, and that Defendant Matheny is responsible for these incidents due to his

failure to supervise Defendant Lopez. For the reasons set forth below, these allegations do

not state a plausible claim for violation of § 1983.

a. Missing Property

Plaintiff’s allegation that he was missing property after jail officials searched his

cell does not state a plausible § 1983 claim against any named Defendant for various

reasons, including most notably that Plaintiff does not allege that any named Defendant

was personally involved in taking his property. 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). Additionally, Defendant Lopez’s alleged failure to investigate Plaintiff’s loss of

property does not rise to the level of a constitutional violation. Mitchell, 487 F.3d at 378;

Frodge, 501 F. App’x at 532.

11

b. Denial of Shower, Recreation, and Phone for Seventy-Five

Hours

Plaintiff’s assertions that he was unable to shower, have recreation, or access the

phone for seventy-five hours after the pod search fail to rise to the level of a constitutional

violation.

Specifically, Plaintiff does not set forth any facts to support a plausible inference

that these temporary limitations subjected him to an extreme deprivation of a life necessity

in violation of his Eighth Amendment rights. Hudson v. McMillan, 503 U.S. 1, 8–9 (1992)

(providing that allegations of “extreme deprivations” that deny a prisoner “‘the minimal

civilized measure of life’s necessities” support a cognizable Eighth Amendment

conditions-of-confinement claim (citations and quotations omitted)); Richmond v Settles,

450 F. App’x 448, 455 (6th Cir. 2011) (noting that the Sixth Circuit “has concluded that

deprivation of a shower and other personal hygiene items for a ‘brief span of time . . . , i.e.

only six days’ is not actionable conduct.” (quoting Siller v. Dean, 205 F.3d 1341 (6th Cir.

Feb. 1, 2000))); Thornton v. Sevier Cnty. Jail, No. 3:23-CV-191, 2023 WL 4707133, at *5

(E.D. Tenn. July 24, 2023) (finding that “[a]n occasional three-day deprivation of showers,

clean clothes, and recreation does not deprive an inmate of ‘the minimal civilized measure

of life’s necessities’” (citation omitted)).

Also, Plaintiff’s allegation that he was unable to use the phone for 75 hours fails to

allege a violation of his First Amendment rights. United States v. Footman, 215 F.3d 145,

155 (1st Cir. 2000) (“Prisoners have no per se constitutional right to use a

telephone”); Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994) (“While prisoners

12

retain the right to communicate with friends, family, and counsel while in prison, they do

not have a right to unlimited telephone calls.”).

c. Segregation and Lockdowns

Plaintiff’s allegations regarding his pod being subjected to segregation and

lockdowns after the pod search also fail to state a claim upon which relief may be granted

under § 1983.

To sustain an action against Defendants based on the segregation and lockdowns,

Plaintiff must show the existence of a protected liberty or property interest with which

Defendants interfered. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“The Fourteenth

Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or

property; and those who seek to invoke its procedural protection must establish that one of

these interests is at stake.”). But Plaintiff does not have a liberty interest “in avoiding

transfer to more adverse conditions of confinement.” Id. (citing Meachum v. Fano, 427

U.S. 215, 225 (1976)). Moreover, the Sixth Circuit has stated that “administrative

segregations have repeatedly been held not to involve an ‘atypical and significant’ hardship

implicating a protected liberty interest.” Jones v. Baker, 155 F.3d 810, 812 (6th Cir.

1998); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997) (finding that an inmate “could

not after Sandin, argue that placement in administrative segregation is an ‘atypical and

significant hardship’”); Rimmer-Bey v. Brown, 62 F.3d 789, 791 (6th Cir. 1995) (finding

that mere “placement in administrative segregation was not an atypical and significant

hardship, as intended by Sandin”). However, “a liberty interest in avoiding particular

13

conditions of confinement may arise” where that confinement “imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at

222–23 (citing Sandin v. Conner, 515 U.S. 472, 483–84 (1995)).

As Plaintiff has not set forth any facts from which the Court can plausibly infer that

his segregation and/or lockdowns have subjected him to hardship that would rise to the

level of a constitutional violation, these allegations fail to state a plausible claim for

violation of § 1983.

d. Legal Tablet

Plaintiff also alleges that Defendant Lopez took away inmates’ legal tablet after the

pod search. However, as Plaintiff does not suggest that this denial of the legal tablet has

prejudiced him in any way, his lack of access to this tablet fails to rise to the level of a

constitutional violation. Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (holding

that a plaintiff must plead and prove that his meritorious claims have been prejudiced by

the alleged denial of adequate legal resources to state a claim for denial of access to courts

(citing Lewis v. Casey, 518 U.S. 343 (1996))). This conclusion is bolstered by the fact that

it is apparent that Plaintiff still has access to legal resources, as his complaint contains

ample legal citations.

Accordingly, Plaintiff’s allegation that Defendant Lopez took inmates’ legal tablet

does not allow the Court to plausibly infer a violation of § 1983.

14

e. Failure to Supervise

Plaintiff additionally claims that Defendant Matheny is liable under § 1983 for the

incidents that followed the pod search due to his failure to supervise Defendant Lopez.

However, for the reasons set forth above, Plaintiff has not plausibly alleged that Defendant

Lopez violated his constitutional rights in the incidents that followed the pod search. Nor

has Plaintiff set forth any facts to support a plausible inference that Defendant Matheny

“authorized, approved[,] or knowingly acquiesced” in any violation of his constitutional

rights, as required for Defendant Matheny to be liable for any such violation under § 1983.

Troutman v. Louisville Metro Dep’t of Corrs., 979 F.3d 472, 487–88 (6th Cir. 2020)

(providing that “at minimum a plaintiff must show that a supervisory official at least

implicitly authorized, approved[,] or knowingly acquiesced in the unconstitutional conduct

of the offending subordinate” in order for the supervisory official to be liable for a

subordinate’s acts under § 1983) (internal quotation marks and citations omitted).

Accordingly, Plaintiff’s allegation that Defendant Matheny is liable for Defendant

Lopez’s actions fails to allege a plausible claim for violation of § 1983.

3. Grievance

Plaintiff next seeks § 1983 relief because Defendant Posthummus answered a

grievance that Plaintiff filed against this Defendant. However, this allegation fails to state

a claim upon which relief may be granted under § 1983, as Plaintiff does not have a

constitutional right to an effective grievance procedure. Argue v. Hofmeyer, 80 F. App’x

15

427, 430 (6th Cir. 2003) (providing that a prisoner has “no inherent constitutional right to

an effective prison grievance procedure”).

4. Trust Account Form

The last claim Plaintiff sets forth in his complaint arises out of his alleged failure to

timely obtain an inmate trust account statement form from Defendant Sanders to file his

claims against the Warren County Jail. Again, however, as Plaintiff does not suggest that

this denial prejudiced him at all, this allegation does not rise to the level of a constitutional

violation. Pilgrim, 92 F.3d at 416 (6th Cir. 1996). Moreover, the record demonstrates that

Plaintiff’s inability to obtain this form from Defendant Sanders did not prejudice Plaintiff,

as the Court has granted Plaintiff leave to proceed in forma pauperis in this action.

5. Claims Against Warren County, Kellwell Food Management, and

All Individual Defendants in Their Official Capacities

Plaintiff’s claims against the individual Defendants in their official capacities1 are

actually against the individual Defendants’ employers, specifically Warren County and

Kellwell Food Management, whom Plaintiff also sued separately [Id. at 2]. 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”); Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity suits generally represent only another

way of pleading an action against an entity of which an officer is an agent.”). Thus, the

1 While the complaint is somewhat ambiguous on this issue, Plaintiff ultimately states that

he has sued all Defendants in their official capacities [Id. at 15]. Thus, the Court construes the

complaint to sue all individual Defendants in their official capacities.

16

Court evaluates Plaintiff’s claims against the individual Defendants in their official

capacities as additional claims against Defendants Warren County and Kellwell Food

Management.

For Plaintiff to state a claim upon which relief may be granted under § 1983 as to

Defendants Warren County and Kellwell Food Management, he must plausibly allege that

a custom or policy of these entities caused a violation of his constitutional rights. See

Monell., 436 U.S. at 708 (Powell, J., concurring) (explaining a municipality can only be

held liable for a constitutional violation when the violation resulted from “implementation

of [the municipality’s] official policies or established customs”); Street v. Corr. Corp. of

Am., 102 F.3d 810, 818 (6th Cir. 1996) (holding that a private corporation acting under

color of state law may not be liable under § 1983 for constitutional violations based upon

a theory of respondeat superior but rather may be liable only where its custom or policy

caused a constitutional violation) (quoting Harvey v. Harvey, 949 F.2d 1127, 1129–30

(11th Cir. 1992) (citing Monell, 436 U.S. at 691)).

However, as set forth above, Plaintiff’s complaint does not plausibly allege that any

violation of his constitutional rights occurred. As such, the Court cannot plausibly infer

that that a custom or policy of Defendants Warren County and Kellwell Food Management

caused any violation of Plaintiff’s constitutional rights. Accordingly, Defendant Warren

County and Kellwell Food Management and all official capacity claims against the

individual Defendants will be DISMISSED.

17

IV. Conclusion

For the reasons set forth above:

1. Plaintiff’s request for appointment of counsel [Doc. 2, pp. 16–17] is

DENIED;

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

GRANTED;

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

4. The custodian of Plaintiff’s inmate trust accounts is DIRECTED to submit

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

5. The Clerk is DIRECTED to provide a copy of this memorandum opinion

and the accompanying judgment order to the custodian of inmate accounts at

the institution where Plaintiff is now confined and the Court’s financial

deputy;

6. Even liberally construing the complaint in favor of Plaintiff, it fails to state a

claim upon which relief may be granted under § 1983;

7. Accordingly, this action will be DISMISSED pursuant to 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A, and Plaintiff’s motion for issuance of

subpoenas is DENIED as moot; and

8. 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.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

ENTER:

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

18