Delk v. Bumphus

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

ADRIAN DESHUN DELK, )

)

Plaintiff, )

)

VS. ) No. 16-1275-JDT-cgc

)

HARDEMAN COUNTY )

CORRECTIONAL FACILITY, ET AL., )

)

Defendants. )

ORDER SEVERING AND TRANSFERRING CLAIMS,

PARTIALLY DISMISSING COMPLAINT, AND DIRECTING THAT

PROCESS BE ISSUED AND SERVED ON THE REMAINING DEFENDANTS

On October 21, 2016, Plaintiff Adrian Deshun Delk, who is incarcerated at the

Trousdale Turner Correctional Center in Hartsville, Tennessee, filed a pro se complaint

pursuant to 42 U.S.C. § 1983, a motion to proceed in forma pauperis, and a motion for

appointment of counsel. (ECF Nos. 1, 3 & 4.) Delk’s complaint concerns his previous

incarceration at Hardeman County Correctional Facility (HCCF) in Whiteville, Tennessee.

The Court issued an order on October 24, 2016, granting leave to proceed in forma pauperis

and assessing the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28

U.S.C. §§ 1915(a)-(b). (ECF No. 6.) In the year that followed, Delk filed numerous

additional exhibits and “evidence.” (ECF Nos. 12, 14, 15, 17 to 22, 24 & 26.) The Court

granted Delk’s motions to file the exhibits but declined to consider any additional

documents aside from the complaint during the screening process. (ECF No. 27 at PageID

512.) The Court also denied Delk’s motion for appointment of counsel. (Id. at PageID

511.)

On November 2, 2018, Delk filed an amended complaint that is 79 pages in length

and also includes 301 pages of exhibits and attachments. (ECF No. 31.) The Clerk shall

record the Defendants as the HCCF; HCCF Case Managers Columbus Molone, Inell Allen

and Tomicka McKinnie; HCCF Corrections Officers (C/O) Danita Woods and Latoya

Louden; HCCF Lieutenant Eric Austin; Laura Petty and Thelma Bumpus, nurses at the

South Central Correctional Facility (SCCF); Jasper Brewster, a dentist at SCCF; Bernhard

Dietz, a doctor at HCCF; Kent Joy, HCCF Mailroom Manager; Kelsey Gates, an Internal

Affairs Officer at HCCF; former HCCF Warden Grady Perry;1 Thomas Coreman, HCCF

Program Manager; HCCF Grievance Sergeants Latoya Brown and Rebeca Willison;

Dorthy Robertson, a Unit Manager at HCCF; Elsie Smith, a teacher at HCCF; Keinaenna

Jackson, a Disciplinary Sergeant at HCCF; and Carlson Brent, a Segregation Sergeant at

HCCF.

Delk sues the Defendants in their individual capacities and seeks various damages

in varying amounts from each. (ECF No. 31 at PageID 600-06.) Delk also requests various

1 Grady Perry is now Warden at SCCF. See https://www.tn.gov/correction/sp/state-

prison-list/south-central-correctional-facility.html. The current Warden of HCCF is Hilton Hall,

Jr. See https://www.tn.gov/correction/sp/state-prison-list/hardeman-county-correctional-

facility.html. Delk sues Warden Perry in only his individual capacity, so the docket does not

require modification to reflect the change in wardens.

declaratory relief against Defendants Joy, Coreman, Brown, Willison, Robertson, and

Smith. (Id. at PageID 602-04.)

The Court is required to screen prisoner complaints and to dismiss any complaint,

or any portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or

(2) seeks monetary relief from a defendant who is immune from such

relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may

be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556

U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57

(2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court

accepts the complaint’s “well-pleaded” factual allegations as true and then determines

whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin,

631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations

“are not entitled to the assumption of truth,” and legal conclusions “must be supported by

factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.

R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’

rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings

drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at

383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants,

however, are not exempt from the requirements of the Federal Rules of Civil Procedure.

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.

App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for

failure to comply with “unique pleading requirements” and stating “a court cannot ‘create

a claim which [a plaintiff] has not spelled out in his pleading’” (quoting Clark v. Nat’l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

Delk filed his complaint pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against a judicial

officer for an act or omission taken in such officer=s judicial capacity,

injunctive relief shall not be granted unless a declaratory decree was violated

or declaratory relief was unavailable. For the purposes of this section, any

Act of Congress applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of

rights secured by the “Constitution and laws” of the United States (2) committed by a

defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150

(1970).

Delk raises numerous claims against several Defendants at HCCF and SCCF that

involve or stem from assaults that occurred on March 4, 2016, June 8, 2017, November 4,

2017, and January 18, 2018. The Court will separately discuss the facts pertaining to each

Defendant, or group of Defendants where possible, and then analyze the relevant law for

the related claim or claims.

Claims Against SCCF Defendants

Delk’s primary claims relate to various incidents during his incarceration at HCCF.

However, in his amended complaint he asserts additional claims against Defendants Laura

Petty, Thelma Bumpus and Jasper Brewer, employees at SCCF. (ECF No. 31 at

PageID 540-41, 552, 564-67.) The proper joinder of parties in a single lawsuit is governed

by Federal Rule of Civil Procedure 20.2 Rule 20(a)(2) governs the joinder of Defendants

and provides that multiple Defendants may be joined in one action if:

(A) any right to relief is asserted against them jointly, severally, or in

the alternative with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all Defendants will arise

in the action.

The Seventh Circuit has cogently explained how Rule 20(a)(2) applies to prisoner

plaintiffs:

[M]ultiple claims against a single party are fine, but Claim A against

Defendant 1 should not be joined with unrelated Claim B against Defendant

2. Unrelated claims against different Defendants belong in different suits,

not only to prevent the sort of morass that this [multi]-claim, [multi]-

Defendant suit produced but also to ensure that prisoners pay the required

filing fees–for the Prison Litigation Reform Act limits to 3 the number of

frivolous suits or appeal that any prisoner may file without prepayment of

the required fees. 28 U.S.C. § 1915(g). . . .

2 Once it is determined whether the parties in a case are properly joined under Rule 20,

the joinder of multiple claims against any particular party is governed by Rule 18(a), which

provides that “[a] party asserting a claim, counterclaim, crossclaim, or third-party claim may

join, as independent or alternative claims, as many claims as it has against an opposing party.”

. . . .

. . . . A buckshot complaint that would be rejected if filed by a free

person–say, a suit complaining that A defrauded the plaintiff, B defamed

him, C punched him, D failed to pay a debt, and E infringed his copyright,

all in different transactions–should be rejected if filed by a prisoner. . . .

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Dykes v. Benson, No. 1:18-

cv-664, 2018 WL 3708054, at *4 (W.D. Mich. Aug. 2, 2018) (“Permitting improper joinder

in a prisoner civil rights action also undermines the purpose of the PLRA, which was to

reduce the large number of frivolous prisoner lawsuits that were being filed in the federal

courts.”).

The claims relating to Delk’s time at SCCF are misjoined in this action because they

are completely unrelated to Delk’s various claims about his incarceration at HCCF and

seek relief against entirely unrelated Defendants.

Moreover, the Western District of Tennessee is not the proper venue for Delk’s

claims against the SCCF Defendants. Twenty-eight U.S.C. § 1391(b) authorizes the

commencement of a civil action only in a judicial district:

(1) where any Defendant resides, if all Defendants reside in the same State,

(2) a judicial district in which a substantial part of the events or omissions

giving rise to the claim occurred . . . , or (3) a judicial district in which any

Defendant may be found, if there is no district in which the action may

otherwise be brought.

The claims against Defendants Petty, Bumpus and Brewer have no connection with this

district. The SCCF is located in Clifton, Tennessee, in Wayne County. Wayne County is

part of the Columbia Division of the Middle District of Tennessee. 28 U.S.C. § 123(b)(3).

Federal Rule of Civil Procedure 21 provides that “[m]isjoinder of parties is not a

ground for dismissing an action. On motion or on its own, the court may at any time, on

just terms, add or drop a party. The court may also sever any claim against a party.”

Additionally, 28 U.S.C. § 1406(a) states “[t]he district court of a district in which is filed a

case laying venue in the wrong division or district shall dismiss, or if it be in the interest of

justice, transfer such case to any district or division in which it could have been brought.”

The claims against the SCCF Defendants should not have been brought in this

district. The Court finds that severing the claims raised against Defendants Petty, Bumpus

and Brewer and transferring them to the Middle District of Tennessee is the appropriate

remedy for the misjoinder. Accordingly, the claims in the amended complaint against

Defendants Laura Petty, Thelma Bumpus and Jasper Brewer are hereby SEVERED from

this case and TRANSFERRED, pursuant to 28 U.S.C. § 1406(a), to the Columbia Division

of the United States District Court for the Middle District of Tennessee.3

Claims Against HCCF

The Court construes Delk’s claims against HCCF as an attempt to assert claims

against CoreCivic, a private corporation that operates the HCCF.4 “A private corporation

that performs the traditional state function of operating a prison acts under color of state

3 The documents associated with the severed and transferred claims are Docket Entries 1,

3, 6, 27 and 31. The Clerk is DIRECTED to remove Defendants Petty, Bumpus and Brewer as

parties in this case.

4 See https://www.tn.gov/content/tn/correction/sp/state-prison-list/hardeman-county-

correctional-facility.html (“Hardeman County Correctional Facility is owned by the Hardeman

County Correctional Facilities Corporation, which contracts with CoreCivic for management of

the prison.”).

law for purposes of § 1983.” Thomas v. Coble, 55 F. App’x 748, 748 (6th Cir. 2003) (citing

Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996)). The Sixth Circuit has

applied the standards for assessing municipal liability to claims against private corporations

that operate prisons or that provide medical care or food services to prisoners. Id. at 748-

49; Street, 102 F.3d at 817-18; Johnson v. Corr. Corp. of Am., 26 F. App’x 386, 388 (6th

Cir. 2001); see also Eads v. State of Tenn., No. 1:18-cv-00042, 2018 WL 4283030, at *9

(M.D. Tenn. Sept. 7, 2018). CoreCivic “cannot be held liable under a theory of respondeat

superior.” Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 627 (6th Cir. 2011). To

prevail on a § 1983 claim against CoreCivic, Delk “must show that a policy or well-settled

custom of the company was the ‘moving force’ behind the alleged deprivation” of his

rights. Id.

Delk has not alleged that he suffered an injury because of conditions attributable to

an unconstitutional policy or custom of CoreCivic. He instead attributes his injuries to the

individual actions of other Defendants. He has therefore failed to state a claim against the

HCCF/CoreCivic.

Untimely Claims

Some of Delk’s claims in his amended complaint are untimely. The statute of

limitations for a § 1983 action is the “state statute of limitations applicable to personal

injury actions under the law of the state in which the § 1983 claim arises.” Eidson v. Tenn.

Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007); see also Wilson v. Garcia,

471 U.S. 261, 275-76 (1985). The limitations period for § 1983 actions arising in

Tennessee is the one-year limitations provision found in Tenn. Code Ann. § 28-3-

104(a)(1). Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005).

Delk’s original complaint is deemed filed on October 18, 2016, the date it was

received in the HCCF mailroom. (ECF No. 1-8 at PageID 165.) He signed the amended

complaint and gave it to prison officials for mailing on October 29, 2018. (ECF No. 31-

26 at PageID 908.) See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (deeming a

complaint filed “when it is handed over to prison officials for mailing to the court”).

Claims in Delk’s amended complaint may “relate back” to conduct or events first set forth

in the original complaint. See Fed. R. Civ. P. 15(c)(2). If the claims meet the requirements

of Rule 15(c)(2) (or another subsection of Rule 15(c)), they will be considered filed as of

October 18, 2016. Under Rule 15(c), most of the claims in Delk’s amended complaint

relate back to a claim alleged in the original complaint and are therefore timely.

The amended complaint does, however, add claims against several new Defendants

not named in his original complaint, specifically Defendants Willison, Robertson, Smith,

Brent, Allen and McKinnie. The Sixth Circuit has held that “relation back of an

amendment adding a new party”—rather than a new claim or defense against an existing

party—is not permitted under Federal Rule of Civil Procedure 15(c). See Asher v. Unarco

Material Handling, Inc., 596 F.3d 313, 318-19 (6th Cir. 2010). The new claims against

these Defendants will therefore not relate back to the original complaint. For these new

claims to be timely, they must have accrued within a year of the date Delk filed his amended

complaint; that is, the events of which he complains must have occurred on or after October

29, 2017.

Delk first included his claims against Defendant Robertson in an “exhibit” he filed

on February 23, 2017. (ECF No. 18.) The exhibit concerns allegations against Defendant

Robertson that are repeated in the amended complaint. (ECF No. 31 at PageID 547.) In its

previous order, the Court granted Delk’s motion to file the exhibit. (ECF No. 27 at PageID

512.) Based on the Court’s previous order accepting ECF No. 18 as an exhibit to the

original complaint, the Court will allow the claims against Defendant Robertson to relate

back to the complaint and will consider these claims timely.

The same cannot be said about the claims against Defendants Willison, Smith,

Brent, Allen and McKinnie. Delk’s original complaint does not raise claims against these

Defendants and they are not named in any “exhibit” the Court previously accepted. The

Court must individually address the claims against each of these Defendants to determine

if they concern events occurring on or after October 29, 2017.

Delk’s claim against Defendant Willison relates to a grievance Delk alleges

Willison wrongly rejected in March or April 2017. (ECF No. 31 at PageID 546-47;

ECF No. 31-18.) His claim against Defendant Smith relates to a disciplinary report from

November 3, 2016. (ECF No. 31 at PageID 547-48; ECF No. 31-13.) These claims are

untimely.

The claim against Defendant Brent relates to a disciplinary report Brent allegedly

wrote on January 3, 2018. (ECF No. 31 at PageID 550.) Delk’s claim against Defendant

Allen relates to events that occurred on November 2 through 4, 2017. (ECF No. 31 at

PageID 549.) These claims are timely.

Delk’s claim against Defendant McKinnie appears towards the end of the amended

complaint, (ECF No. 31 at PageID 594), and refers to factual allegations made in

paragraphs 32, 33 and 34 of the pleading, (id. at PageID 553). Those earlier factual

allegations relate to events that occurred on February 16, 2018; March 3, 2017; and

October 19, 2018. (Id.) The only event mentioned in both sections—and the only one that

contains allegations against Defendant McKinnie—is set out in paragraph 32. The incident

allegedly occurred on February 16, 2018, and involved moving Delk into a different cell.

The Court will therefore allow only the claim related to the incident set out in paragraph

32 to proceed against Defendant McKinnie. The other claims, to the extent Delk seeks to

hold Defendant McKinnie responsible, fail to state a claim or are untimely.

The claims against Defendants Willison and Smith are therefore DISMISSED as

untimely. The claims against Defendants Brent and Allen, and the claim against Defendant

McKinnie related to an alleged incident on February 16, 2018, will be addressed later in

this order.

Defendant Molone

Delk alleges that he twice submitted a cell-change form to his case manager,

Defendant Molone, on February 29, 2016, and March 4, 2016, after his cellmate threatened

him. (ECF No. 31 at PageID 537.) Molone allegedly “forced” Delk to remain with the

cellmate who made the threats. (Id.) Delk asserts the actions of Molone were deliberately

indifferent to his life and safety and resulted in Delk “being viciously assaulted” by his

cellmate and others. (Id. at PageID 558.)

Delk’s allegations amount to a claim for deliberate indifference, which arises under

the Eighth Amendment’s prohibition of cruel and unusual punishments. See Estelle v.

Gamble, 429 U.S. 97, 104 (1976). An Eighth Amendment claim consists of both objective

and subjective components. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the

objective component of an Eighth Amendment claim, a prisoner “must, at a minimum,

allege ‘deliberate indifference’ to his ‘serious’ medical needs.” Wilson v. Seiter, 501 U.S.

294, 297 (1991). The subjective component of an Eighth Amendment violation requires a

prisoner to demonstrate that the official acted with the requisite intent, that is, that he had

a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson, 501 U.S.

at 297, 302-03. “[D]eliberate indifference describes a state of mind more blameworthy

than negligence.” Farmer, 511 U.S. at 835. Thus, “the prison official must know[] of and

disregard[] an excessive risk to inmate health or safety.” Id. at 837-38.

Delk allegedly twice informed Molone about the threats made to Delk by his

cellmate, yet Molone refused Delk’s request to change cells. Delk was then assaulted by

the cellmate who threatened him. These allegations sufficiently allege Molone knew of

yet disregarded a risk to Delk’s safety. See Farmer, 511 U.S. at 833-34. Delk therefore

has sufficiently alleged a claim of deliberate indifference against Defendant Molone.

Defendant Woods

Delk alleges that on March 4, 2016—after he was denied a cell change—Defendant

Woods allowed Security Threat Group (SGT) inmates out of their cells in violation of

Tennessee Department of Correction (TDOC) policy. (ECF No. 31 at PageID 537.) The

inmates joined Delk’s cellmate in moving Delk to cell 214, assaulting him, and keeping

him from seeking medical help. (Id.) Another inmate allegedly found Delk and called for

help, fearing that Delk needed medical attention and might die from blood loss. (Id. at

PageID 538.) Defendant Woods answered the help call and allegedly responded,

“Oh well,” and told the inmates “[n]ot to push the [call] button or you will receive a

disciplinary report.” (Id.) Delk asserts Defendant Woods’s actions constituted deliberate

indifference to his safety and medical needs. (Id. at PageID 559-60.)

Delk cannot state a claim under § 1983 based only on an alleged violation of TDOC

policy. See Laney v. Farley, 501 F.3d 577, 580 n.2 (6th Cir. 2007). Delk, however, alleges

that by violating TDOC policy, Defendant Woods deliberately disregarded the risk to his

safety. He also alleges that Woods disregarded his need for medical treatment after the

assault and instead threatened disciplinary charges. Both of these allegations sufficiently

state a claim of deliberate indifference against Defendant Woods.

Defendant Louden

Delk next alleges that, after the inmates assaulted him, Defendant Louden found

Delk in cell 214, ignored his injuries and request for medical treatment, and forced him

back into his original cell with the same cellmate who had just attacked him. (ECF No. 31

at PageID 538.) Delk told Louden that his cellmate had perpetrated the assault, and Louden

allegedly responded, “I don’t care[.] [L]ock into the cell with him so I can do count.” (Id.)

Like Delk’s claim against Defendant Woods, his allegations against Louden sufficiently

state a claim for deliberate indifference to his need for medical treatment.

Defendant Austin

Delk alleges that Defendant Austin, as the supervisor of Defendants Woods and

Louden, violated TDOC policy by failing to “enforce” Woods and Louden to keep the

inmates who assaulted Delk locked in their cells. (ECF No. 31 at PageID 539, 562.) Delk

asserts that, had Austin properly followed TDOC policy, Austin would have “correct[ed]”

the actions of Woods and Louden and thereby prevented the assault on Delk. (Id. at

PageID 562-63.)

Under § 1983, “[g]overnment officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat superior.”

Iqbal, 556 U.S. at 676; see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

Thus, “a plaintiff must plead that each Government-official Defendant, through the

official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.

There must be a showing that the supervisor encouraged the specific incident

of misconduct or in some other way directly participated in it. At a minimum,

a § 1983 plaintiff must show that a supervisory official at least implicitly

authorized, approved or knowingly acquiesced in the unconstitutional

conduct of the offending subordinates.

Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official who is aware of the

unconstitutional conduct of his subordinates but fails to act generally cannot be held liable

in his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Shehee

v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).

Delk alleges only that Defendant Austin’s failure to follow TDOC policy led to the

deliberately indifferent actions of Defendants Woods and Louden. He does not allege

Austin personally encouraged, participated in, or knowingly acquiesced to their actions.

Delk’s allegations are therefore insufficient to hold Defendant Austin responsible for the

attack or to state a claim for relief against Austin under § 1983.

Defendant Dietz

Delk alleges that Defendant Dietz refused to allow Delk to see a doctor about

hearing loss Delk suffered from the assault. (ECF No. 31 at PageID 542.) Delk states

Dietz ignored the order of a physician at Memphis Regional One Medical Center to check

Delk’s ears. (Id.) Dietz also allegedly has refused Delk’s sick-call forms requesting

treatment and has “interfered” with Delk’s treatment from other doctors. (Id. at

PageID 542, 568.) Delk alleges Dietz began refusing treatment only after learning that

Delk had filed grievances against Dietz and brought this lawsuit. (Id. at PageID 568-69.)

Delk states that he has lost his hearing because of Dietz’s retaliatory actions. (Id. at

PageID 568.)

Delk’s allegations that Defendant Dietz refused treatment constitute a claim for

deliberate indifference. Delk’s allegations are thin, but he sufficiently states a claim for

deliberate indifference based on Dietz’s alleged refusal to allow Delk to see a doctor about

Delk’s loss of hearing.

Delk also alleges that Dietz has refused treatment as retaliation for Delk’s

grievances and lawsuit. The Court reviews Delk’s retaliation claim under the First

Amendment. See Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005) (“Retaliation on

the basis of a prisoner’s exercise of his First Amendment rights violates the Constitution.”).

A claim of retaliation has three elements:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken

against the plaintiff 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) (en banc). “Protected conduct,

for the purposes of a First Amendment retaliation claim, encompasses a prisoner’s efforts

to access the courts in . . . civil rights claims.” Bell v. Johnson, 308 F.3d 594, 607 (6th Cir.

2002); see Thaddeus-X, 175 F.3d at 391. “[T]he plaintiff must be able to prove that the

exercise of the protected right was a substantial or motivating factor in the Defendant’s

alleged retaliatory conduct.” Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001)

(citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

Delk’s allegations sufficiently satisfy each element of a retaliation claim. First,

Delk’s filing of grievances and this lawsuit are protected conduct, and retaliating against

Delk for filing them would constitute a constitutional violation. See Hill, 630 F.3d at

472-73; Thaddeus-X, 175 F.3d at 394. Second, Dietz’s denial of medical treatment likely

would deter a prisoner like Delk from filing grievances and pursuing this lawsuit because,

as Delk alleges, he remains in pain and has filed several denied sick-call forms since the

assault. See O’Brien v. Michigan Dep’t of Corr., 592 F. App’x 338, 343 (6th Cir. 2014).

Finally, Delk alleges Dietz refused medical treatment only after learning that Delk had filed

his grievances and lawsuit. This “temporal proximity between the protected conduct and

the adverse action” provides some circumstantial evidence that Dietz’s adverse actions

were motivated in part by Delk’s protected conduct. Id. (citing Muhammad v. Close, 379

F.3d 413, 417-18 (6th Cir. 2004)); see also Hill, 630 F.3d at 475 (noting that “because of

the difficulty in producing direct evidence of an official’s retaliatory motive, circumstantial

evidence can suffice”). Delk therefore sufficiently states a claim against Defendant Dietz

for retaliation in violation of the First Amendment.

Defendant Joy

Delk next alleges that on several occasions, Defendant Joy has opened Delk’s legal

mail outside his presence, shown it to other prison employees, and kept it from Delk for

several days or longer. (ECF No. 31 at PageID 542-44.) Delk alleges that Joy’s

withholding of Delk’s mail led to the dismissal of a state-court appeal and Delk being

charged a fee. (Id.) According to Delk, Joy has attempted to conceal his actions by

stamping Delk’s mail with fake received-on dates. (Id. at PageID 543.) Delk alleges Joy’s

actions were in retaliation for Delk filing a grievance. (Id. at PageID 542.)

Delk’s allegations about his mail may constitute several different claims under the

First Amendment. First, Delk alleges that Joy improperly opened the following legal mail

outside of Delk’s presence: (1) a letter from the Deputy Clerk of the Tennessee Court of

Appeals in Jackson, Tennessee, dated April 5, 2016; (2) a letter from the same Deputy

Clerk dated May 22, 2016; and (3) a letter from a Tennessee General Sessions Court dated

June 27, 2016. (ECF No. 31 at PageID 544.) “[M]ail from a court constitutes ‘legal mail’

and cannot be opened outside the presence of a prisoner who has specifically requested

otherwise.” Sallier v. Brooks, 343 F.3d 868, 877 (6th Cir. 2003); see also TDOC Policy

507.02 IV.(O) (defining “privileged mail” to include correspondence from courts and court

clerks); id. 507.02 VI.(C)(1) (mandating that privileged mail be opened “in the presence of

the inmate addressee”). Allegations that prison officials have improperly opened two or

three pieces of legal mail suffices to state a claim under the First Amendment.

Merriweather v. Zamora, 569 F.3d 307, 317 (6th Cir. 2009) (citing Sallier, 343 F.3d at

879-80; Lavado v. Keohane, 992 F.2d 601, 609 (6th Cir. 1993)). Taking Delk’s allegations

as true, he adequately states a claim against Joy under the First Amendment for improperly

opening his legal mail.

Delk’s allegations regarding his mail also may amount to a First Amendment claim

that he was denied access to the courts. Prisoners retain a constitutional right of access to

the courts. Bounds v. Smith, 430 U.S. 817, 822 (1977) (citing Ex Parte Hull, 312 U.S. 546

(1941)). That right “extends to direct appeals, habeas corpus applications, and civil rights

claims only.” Thaddeus-X, 175 F.3d at 391. To have standing to pursue a First Amendment

claim that he was denied access to the courts, “a prisoner must show prison officials’

conduct inflicted an ‘actual injury,’ i.e., that the conduct hindered his efforts to pursue a

nonfrivolous legal claim.” Rodgers v. Hawley, 14 F. App’x 403, 409 (6th Cir. 2001)

(citation omitted); see Thaddeus-X, 175 F.3d at 394. In addition, the Supreme Court has

held that “the underlying cause of action . . . is an element that must be described in the

complaint, just as much as allegations must describe the official acts frustrating the

litigation.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) (citing Lewis v. Casey, 518

U.S. 343, 353 & n.3 (1996)). “Like any other element of an access claim, the underlying

cause of action and its lost remedy must be addressed by allegations in the complaint

sufficient to give fair notice to a defendant.” Id. at 416.

Delk alleges that because Defendant Joy withheld Delk’s legal mail for several days,

the state court dismissed Delk’s appeal of the denial of a motion under Tennessee Rule of

Criminal Procedure 36.1. (ECF No. 31 at PageID 542-43.) Rule 36.1 provides the

procedure for filing a motion to correct an illegal sentence. A motion to correct illegal

sentence is a collateral action, and an appeal from the denial of a motion under Rule 36.1

does not constitute a “direct appeal” covered under a prisoner’s right of access to the courts.

Moreover, Delk does not describe the underlying cause of action, meaning the Court cannot

determine whether his legal claim was nonfrivolous and therefore sufficient to support his

allegation of an “actual injury.” Lacking this necessary information, Delk’s allegations are

insufficient to state a claim that he was denied his right to access the courts.

Delk also fails to allege a claim of retaliation against Defendant Joy. Delk concludes

that Joy withheld Delk’s mail in retaliation for Delk filing grievances but fails to allege any

facts to support that conclusion. Delk’s conclusory statement alone is insufficient to

attribute to Joy a retaliatory motive. See Hill, 630 F.3d at 475.

Defendant Gates

Delk alleges that he was jumped by three inmates on June 8, 2017. (ECF No. 31 at

PageID 545.) After the attack he sent at least three letters to Defendant Gates telling her

that he was “not safe and is in fear of his life while living in F-Unit.” (Id. at PageID 572.)

Delk alleges that Gates failed to use “her personal discretion” to protect him, and as a result

Delk was again attacked and repeatedly stabbed by an inmate while in segregation on

November 4, 2017. (Id. at PageID 572-73.) Delk alleges that the inmate who stabbed him

was paid by an unspecified Defendant to attack Delk on November 4, 2017, because Delk

had filed “paperwork naming the Defendants.” (Id. at PageID 573.) Delk blames Gates

for the attack and asserts she failed to investigate and protect him by moving Delk to a

different facility, though Delk does not state whether he ever requested a transfer. (Id. at

PageID 545, 573-74.)

Delk’s allegations fail to state a claim against Defendant Gates for deliberate

indifference. Delk does not allege that Gates is responsible for the June 8 attack. He

alleges only that she should have taken certain action after the attack. Prison officials must

“take reasonable measures to guarantee the safety of the inmates” and “to protect prisoners

from violence at the hands of other prisoners.” Farmer, 511 U.S. at 832-33. However,

prison officials owe no duty to prisoners to investigate a past assault. Delk’s expectation

of a transfer to a new facility goes beyond “reasonable measures” that officials must

undertake to protect inmates. It is unknown whether Gates, who Delk labels an internal

affairs employee at HFCC, could even grant a transfer. Moreover, Delk states that he was

in segregation when he was stabbed on November 4. That Delk was stabbed by a different

inmate in a separate part of the prison five months after he sent Gates letters about the June

attack does not suffice to show that Gates was deliberately indifferent to Delk’s safety.

Defendant Perry

Delk next alleges that Defendant Perry, the former Warden of HCCF, failed to

enforce TDOC policies and allowed employees to violate tier-management policies.

(ECF No. 31 at PageID 545.) Delk alleges that Perry failed to instruct his staff to lock into

their cells the inmates who attacked Delk on March 4, 2016. (Id. at PageID 575.) Delk

asserts that Perry “condoned, encouraged and knowingly acquiesced in the conduct” of his

employees. (Id. at PageID 545.)

Delk’s allegations against Defendant Perry, like those against Defendant Austin, fail

to state a claim. Delk seeks to hold Perry responsible in his role as Warden but fails to

allege any facts showing that he was personally involved in any employee’s

unconstitutional behavior. Delk’s unsupported statement that Perry “condoned,

encouraged, and knowingly acquiesced in the conduct” of his employees is insufficient to

provide the necessary nexus. See Iqbal, 556 U.S. at 679.

Defendant Coreman

Delk alleges that Defendant Coreman sent Delk to segregation because Delk did not

wipe down a table, which Delk insists he forgot to do because of memory loss suffered

from the March 4, 2016, attack. (ECF No. 31 at PageID 546.) Delk states he was punished

by being locked in a wet shower in segregation and forced to eat his lunch there. (Id.)

Once released, Delk alleges he was sent to live in a cell with an inmate who smeared his

feces on the walls, sink, bunk, and door of the cell. (Id.) Delk asserts that Coreman acted

in retaliation “because of the rumors of plaintiff filing 42 USC § 1983” and because Delk

filed a grievance against Coreman. (Id. at PageID 576.)

Delk’s allegations that Coreman unreasonably punished Delk for forgetting to wipe

down a table fall under the Eighth Amendment. The conditions of a prisoner’s confinement

may be considered cruel and unusual when they deprive inmates of “the minimal civilized

measure of life’s necessities as measured by a contemporary standard of decency.” Dellis

v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001); see Rhodes v. Chapman, 452 U.S.

337, 347 (1981); Gamble, 429 U.S. at 103-04. A prisoner must allege “extreme

deprivations . . . to make out a conditions-of-confinement claim.” Hudson v. McMillian,

503 U.S. 1, 8-9 (1992).

Delk alleges Coreman sent him to segregation in a wet shower and then to a cell

smeared with feces. These conditions are undoubtedly unpleasant, but Delk does not allege

how long he was forced to remain in either the shower or the feces-smeared cell, nor does

Delk allege that he suffered any injury as a result of the conditions. See Goforth v. Sumner

Cnty., No. 3:13-CV-417, 2013 WL 1943020, at *3 (M.D. Tenn. May 9, 2013) (dismissing

plaintiff’s complaint that he was “forced to endure the smell and unsanitary presence of

human feces smeared on his cell door for a period of 48 hours” because plaintiff failed to

allege that he suffered any injury as a result of the conditions). While the alleged conditions

of Delk’s confinement may have been unacceptable, Delk fails to allege facts sufficient to

state a conditions-of-confinement claim under the Eighth Amendment.

Delk also alleges that Coreman’s actions were in retaliation for Delk filing this

lawsuit and a grievance. Delk again fails to assert any facts in support of his claim of

retaliation. He does not allege that Coreman punished him only after Delk had filed his

lawsuit or a grievance. Delk alleges only that Coreman acted “because of the rumors” that

Delk had filed or was about to file a lawsuit. Delk’s unsupported conclusions for

Coreman’s motive do not suffice to state a claim of retaliation. See Hill, 630 F.3d at 475.

Defendant Brown

Delk alleges that Defendant Brown “used a fake section” of TDOC policy to deny

his grievance. (ECF No. 31 at PageID 546.) Delk alleges Brown improperly denied his

grievance under TDOC 501.01 VI.(C)(1) because it addressed “multiple issues.” (Id.)

Delk asserts that Brown intentionally rejected his grievance to “sabotage” his § 1983

lawsuit, in violation of the First and Fourteenth Amendments. (Id. at PageID 547, 577.)

Delk fails to state a claim against Defendant Brown. “[T]here is no constitutionally

protected due process right to unfettered access to prison grievance procedures.” Walker

v. Michigan Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005). Delk therefore is not

entitled to relief on his claim that Brown improperly denied him access to HCCF’s

grievance procedure. Id. Moreover, contrary to Delk’s reading of the policy,

501.01 VI.(C)(1) expressly prohibits filing a single grievance addressing multiple issues.

See https://www.tn.gov/content/dam/tn/correction/documents/501-01.pdf#page=14.

Defendant Robertson

Delk alleges that Defendant Robertson wrongly denied him access to a notary public

to notarize a motion he had prepared to send to the Tennessee Court of Criminal Appeals.

(ECF No. 31 at PageID 547.) Robertson instead charged Delk with a disciplinary charge

of “defiance” because Delk allegedly told Robertson “he would snitch on her.” (Id.)

Robertson filed the disciplinary report against Delk on February 17, 2017, and has

allegedly been harassing Delk ever since. (Id.) Delk also alleges that Robertson failed to

move him out of F-Unit after the June 8, 2017, attack referenced in his allegations against

Defendant Gates. (Id. at PageID 548.)

Delk’s allegations regarding the notary are construed as a claim that he was denied

access to the courts. Like his similar claim against Defendant Joy, Delk’s claim against

Robertson fails. Delk does not allege that because he was denied a notary, he suffered any

actual injury, e.g., that he could not file his motion. He alleges only that being denied a

notary “would cause delay in his appeal.” (Id. at PageID 547.) Even if he were unable to

file the motion, Delk does not describe the motion or allege what remedy he lost without

its filing. See Christopher, 536 U.S. at 416.

Delk’s allegations that Robertson has been harassing him are more involved. Delk

alleges that, after Robertson denied Delk a notary and filed the disciplinary report, Delk

filed a grievance against Robertson. (ECF No. 31 at PageID 587.) Delk alleged in his

grievance that he did not want Robertson “to send her hitmen to kill him like the other

inmates who [were] killed in G-Unit, where they [were] allegedly beat to death by Dorthy

Robertson inmates who work for her.” (Id.) Several months after filing the grievance, on

November 4, 2017, Delk was repeatedly stabbed by an inmate. (Id.) Delk alleges that he

“became intimidated by Defendant Dorthy Robertson and had stopped sending legal mail,

and expressed in his TDOC grievance that he don’t want Defendant Dorthy Robertson to

send her hit men.” (Id.)

Delk’s allegations that Defendant Robertson hired inmates to kill Delk eight or nine

months after he grieved her for filing a disciplinary report against him fail to state a claim.

Delk offers no facts in support of his assertions that Robertson plotted to kill him in

retaliation for his grievance, and his allegations do not set “a claim to relief that is plausible

on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Delk’s allegations

also fail to state a claim of retaliation. Filing grievances is protected conduct, but Delk’s

“conclusory assertions do not show a sufficient causal nexus” between the February 2017

grievance and the assault in November 2017. See Siggers v. Renner, 37 F. App’x 138, 141

(6th Cir. 2002) (rejecting prisoner’s claim that attack in April 1999 was in retaliation for

incident that occurred nearly one year earlier).

Delk’s allegations that Defendant Robertson refused to move Delk out of F-Unit fail

to state a claim for the same reasons his identical claim against Defendant Gates failed.

See supra.

Defendant Jackson

Delk next alleges that, at a disciplinary hearing, Defendant Jackson refused to allow

one of Delk’s witnesses (a C/O) to testify, threatened to return Delk to segregation, and

removed Delk from the hearing before it had ended. (ECF No. 31 at PageID 548, 591-92.)

Delk insists that Jackson was “close friends” with Defendant Coreman, and that the two

Defendants “incapacitated and sabotage[d]” the hearing. (Id. at PageID 591.) After the

hearing, Delk was sentenced to 10 days in segregation. (Id. at PageID 592.) Delk asserts

these actions deprived him of his rights under the Sixth and Fourteenth Amendments. (Id.

at PageID 591.)

The guarantees of the Sixth Amendment apply only to “criminal prosecutions.”

Kirby v. Illinois, 406 U.S. 682, 690 (1972). Prison disciplinary hearings, however, are not

“criminal prosecutions” and therefore do not confer the same rights. Baxter v. Palmigiano,

425 U.S. 308, 315 (1976); Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The Due Process

Clause of the Fourteenth Amendment affords certain procedural protections to a prisoner

charged with a disciplinary offense that may result in the loss of good time or sentence

credits. Wolff, 418 U.S. at 563-66. Segregation of an inmate may involve the deprivation

of a state-created liberty interest protected by the due process clause “if the segregation

imposes an ‘atypical and significant’ hardship on the inmate ‘in relation to the ordinary

incidents of prison life.’” Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998) (quoting

Sandin v. Conner, 515 U.S. 472, 483 (1995)).

Delk does not allege that, as a result of the hearing, he lost good-time credits or that

the duration of his sentence was affected. Delk alleges only that he was sent to segregation

for ten days. Ten days in segregation is not an atypical or significant hardship on Delk.

These allegations do not establish the existence of a liberty interest entitled to procedural

due-process protections. Delk therefore fails to state a claim against Defendant Jackson

under either the Sixth or Fourteenth Amendment.

Defendant Brent

Delk alleges that on January 3, 2018, unspecified prison officials forced Defendant

Brent to write a disciplinary report against Delk for not moving to a different cell.

(ECF No. 31 at PageID 550.) According to Delk, these unspecified Defendants “was

attempting to kill the Plaintiff by moveing [sic] him into another cell with a paid inmate to

stab him. Plaintiff was wrote up for not leaving his cell to go and get killed.” (Id.) On

January 17, 2018, the unnamed Defendants allegedly moved Delk into protected custody

with an inmate who was a member of the gang that stabbed him on November 4, 2017, and

who attacked Delk on January 18, 2018. (Id. at PageID 550-51.) Delk acknowledges that

“Defendant Carlson Brent may not wanted to harm Plaintiff . . . [but] was forced to harm

Plaintiff by his supervisor.” (Id. at Page ID 594.)

Delk does not state a claim of deliberate indifference against Defendant Brent. Delk

does not allege that Brent is one of the Defendants responsible for moving Delk into the

cell with the inmate who attacked him. In fact, Delk at no point states who actually

transferred him. He alleges only that Brent was forced to discipline Delk by order of

Brent’s supervisor, whom Delk does not name, and that Brent did not want Delk to get

hurt. Delk’s own allegations provide that Brent did not act with the require “culpable state

of mind” to hold Brent responsible for the attack. These allegations wholly fail to establish

that Brent acted with deliberate indifference towards Delk’s health or safety.

Defendant Allen

Delk next alleges that he and another inmate, into whose cell Delk wished to be

transferred, tried to tell Defendant Allen about threats Delk’s current cellmate at the time

had made towards Delk. (ECF No. 31 at PageID 549.) Allen allegedly kicked both inmates

out of her office. (Id.) Delk was then stabbed on November 4, 2017. (Id.) Delk alleges

that Allen intentionally refused to move Delk to his desired cell as part of the alleged plot

to have Delk stabbed. (Id.)

Delk’s allegations against Defendant Allen, like those against Defendants

Robertson and Brent, fail to state a claim regarding the alleged planned attack on Delk.

Delk provides no factual support for his conclusory accusation that Allen intentionally

denied Delk’s request to move into another cell as part of the ongoing plot to kill Delk.

Delk has stated no basis for a claim for relief against Allen.

Defendant McKinnie

Delk alleges that Defendant McKinnie intentionally moved Delk into a cell with a

gang member after he had communicated to her that he needed to be in protective custody,

was “in fear of his life and cannot be around any [C]rips or [B]loods [gang members] due

to his attacks.” (ECF No. 31 at PageID 594.) Delk alleges that McKinnie knew about the

previous attacks yet used “her authority” to move Delk into a cell with another inmate who

assaulted him. (Id.)

Unlike Delk’s allegations regarding the plot to have him stabbed, Delk sufficiently

states a claim against Defendant McKinnie for deliberate indifference. Delk alleges that

he told McKinnie he would be attacked if housed with a gang member, McKinnie knew

Delk previously had been assaulted by a gang member, she then deliberately housed him

with another gang member so that he would be attacked, and he then was attacked. These

allegations suffice to show that McKinnie knew of and disregarded an excessive risk to

Delk’s health or safety. Farmer, 511 U.S. at 837-38.

Allegations Against Unspecified Defendants

Throughout his complaint, Delk also makes various allegations against unspecified

Defendants. (ECF No. 31 at PageID 539-40, 545, 549-51, 553-54, 556.) To the extent he

attempts to assert claims based on those allegations, he has failed to state a plausible claim

against any named Defendant. See Twombly, 550 U.S. at 570.

In conclusion, the Court DISMISSES Delk’s claims against Defendants HCCF,

Austin, Gates, Perry, Coreman, Brown, Willison, Robertson, Smith, Jackson, Brent, and

Allen for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

It is ORDERED that the Clerk shall issue process for Defendants Molone, Woods,

Louden, Dietz, Joy and McKinnie and deliver that process to the U.S. Marshal for service.

Service shall be made on Defendants Molone, Woods, Louden, Dietz, Joy, and McKinnie

pursuant to Federal Rule of Civil Procedure 4(e) and Tennessee Rules of Civil Procedure

4.04(1) and (10) by registered or certified mail or personally if mail service is not effective.

All costs of service shall by advanced by the United States.

It is further ORDERED that Delk shall serve a copy of every subsequent document

he files in this cause on the attorneys for Defendants Molone, Woods, Louden, Dietz, Joy,

and McKinnie. Delk shall make a certificate of service on every document filed. Delk

shall familiarize himself with Federal Rules of Civil Procedure and this Court’s Local

Rules.5

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE

5 A copy of the Local Rules may be obtained from the Clerk or on the Court’s website at

https://www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf.