The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MALIK M. MOORE, )
)
Plaintiff, )
) NO. 3:19-cv-00667
v. )
) JUDGE RICHARDSON
PRISONER TRANSPORT SERVICES, )
)
Defendant. )
MEMORANDUM OPINION
Before the Court is a pro se complaint for alleged violation of civil rights (Doc. No. 1),
filed by Malik M. Moore, a former inmate of the Portage County Jail in Stevens Point, Wisconsin.
The complaint was originally filed in the United States District Court for the Western District of
Missouri, which provisionally granted pauper status based on Plaintiff’s application and
transferred the matter to this Court. (Doc. Nos. 2, 4.)
The matter is now before the Court for a determination of Plaintiff’s pauper status and an
initial review of the complaint pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C.
§§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.
APPLICATION TO PROCEED AS A PAUPER
Following the Western District of Missouri’s transfer of this action and provisional grant
of pauper status, this Court found Plaintiff’s application for pauper status deficient due to the lack
of a certified copy of his inmate trust fund account statement and ordered him to cure the deficiency
within 28 days. (Doc. No. 8.) However, Plaintiff appears to have been released from jail prior to
this deadline, and now seeks an extension of time in which to complete his application for pauper
status. (Doc. No. 9.)
In light of Plaintiff’s release from confinement, and given that his original application was
not a short-form application for prisoners but a long-form declaration of his income, assets, and
obligations that demonstrates his poverty (Doc. No. 2), Plaintiff will be allowed to proceed in this
Court without payment of the filing fee. By separate Order, the Court will grant Plaintiff pauper
status and deny as moot his motion for an extension of time to complete his application therefor.
(Doc. No. 9.)
INITIAL REVIEW OF THE COMPLAINT
I. PLRA SCREENING STANDARD
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss any IFP complaint that is
facially frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. Similarly, Section 1915A
provides that the Court shall conduct an initial review of any prisoner complaint against a
governmental entity, officer, or employee, and shall dismiss the complaint or any portion thereof
if the defects listed in Section 1915(e)(2)(B) are identified. Under both statutes, this initial review
of whether the complaint states a claim upon which relief may be granted asks whether it contains
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,”
such that it would survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hill
v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Applying this standard, the Court must view the complaint in the light most
favorable to Plaintiff and, again, must take all well-pleaded factual allegations as true. Tackett v.
M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551
F.3d 461, 466 (6th Cir. 2009) (citations omitted)). Furthermore, pro se pleadings must be liberally
construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However,
pro se litigants are not exempt from the requirements of the Federal Rules of Civil Procedure,
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the Court “create a claim which [a
plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608, 613 (6th
Cir. 2011) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)).
II. SECTION 1983 STANDARD
Although no basis for this Court’s jurisdiction is provided in the complaint (see Doc. No.
1 at 3), the complaint is liberally construed as seeking to vindicate alleged violations of Plaintiff’s
federal constitutional rights under 42 U.S.C. § 1983. Section 1983 creates a cause of action against
any person who, acting under color of state law, deprives an individual of any right, privilege or
immunity secured by the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d
580, 583 (6th Cir. 2012). Thus, to state a Section 1983 claim, Plaintiff must allege two elements:
(1) a deprivation of rights secured by the Constitution or laws of the United States, and (2) that the
deprivation was caused by a person acting under color of state law. Carl v. Muskegon Cty., 763
F.3d 592, 595 (6th Cir. 2014).
III. ALLEGATIONS AND CLAIMS
Plaintiff’s allegations are as follows:
Between 6-15-2019 & 6-22-2019 while in Mississippi County, Missouri I Malik
M. Moore was intentionally tortured and injured by D. Jensen and his partner
employees of Prisoner Transport Services. While temperature at 80+ employees of
PTS turned off the ventilation & air conditioner as punishment for speaking, and
kept it off for two to three hours to the point of suffocation & heat exhaustion, I
was only given air once the other parties involved started to go unconscious. I was
denied medical attention which has since led to an internal injury. I have since
developed post traumatic stress disorder and depression since being tortured to near
death and having my life endangered.
(Doc. No. 1 at 5.) As relief, Plaintiff asks the Court to order Defendant Prisoner Transport Services
(PTS) to pay for all current and future PTSD and depression medication, as well as all current and
future counseling. (Id.) Plaintiff further seeks compensation for his pain and suffering. (Id.)
IV. ANALYSIS
The Court liberally construes Plaintiff’s allegations as raising a claim that the conditions
of his confinement during transport in Missouri violated his right under the Eighth Amendment to
be free from cruel and unusual punishment. To state a viable Eighth Amendment conditions-of-
confinement claim, Plaintiff must allege a deprivation that is objectively, sufficiently serious.
Hudson v. McMillian, 503 U.S. 1, 8–9 (1992). “Not every unpleasant experience a prisoner might
endure while incarcerated constitutes cruel and unusual punishment within the meaning of the
Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). The Constitution does not
mandate comfortable conditions of confinement, Rhodes v. Chapman, 452 U.S. 337, 349 (1981),
but tolerates “routine discomfort” as part and parcel of the punishment criminal offenders must
endure. Hudson, 503 U.S. at 9.
“It necessarily follows, then, that a pre-trial detainee or prisoner has not been subjected to
cruel and unusual punishment simply because he has been made to feel uncomfortable during the
course of a transfer from one prison to another.” Nguyen v. Prisoner Transportation Servs., No.
3:18-cv-00871, 2019 WL 429678, at *5 (M.D. Tenn. Feb. 4, 2019); see Myers v. Transcor
America, LLC, No. 3:08-0295, 2010 WL 3619831, at *8 (M.D. Tenn. Sept. 9, 2010) (allegations
about physical conditions in prison transport van properly analyzed as conditions-of-confinement
claim under Rhodes). Rather, it is only those conditions that result in the denial of the “minimal
civilized measure of life’s necessities” which constitute cruel and unusual punishment. Rhodes,
452 U.S. at 347. To meet this objective standard, “extreme deprivations are required.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992).
Presuming the truth of Plaintiff’s factual allegations and viewing the complaint in the light
most favorable to him, the Court nonetheless finds that the conditions of his confinement were not
so extreme as to make plausible his claim of cruel and unusual punishment. While the Court does
not doubt that the lack of air conditioning and ventilation in 80+ degree weather produced an
uncomfortable environment, “uncomfortable and even harsh living conditions are part of the
penalty of incarceration.” Bain v. Transcor America, LLC, No. 3:08-0656, 2009 WL 4348598, at
*4 (M.D. Tenn. Nov. 24, 2009) (citing Rhodes, 452 U.S. at 347); see also Chandler v. Crosby, 379
F.3d 1278, 1297 (11th Cir. 2004) (finding that cell temperatures around 85 degrees during summer
months, and reaching as high as 95 degrees on seven days during July and August, were “to be
expected in a residential setting in Florida in a building that is not air-conditioned” and did not
satisfy objective component of Eighth Amendment claim). Plaintiff was confined to that
uncomfortable environment for “two to three hours” (Doc. No. 1 at 5), which is not an excessive
period of time under the circumstances. Cf. Myers, 2010 WL 3619831, at *9 (finding that factors
including temporary nature of uncomfortable conditions in prison transport van, “affecting the
plaintiffs for only a day or two during their transport trips,” weighed against any constitutional
violation); Bain, 2009 WL 4348598 at *5 (finding that fluctuation between extreme heat and
extreme cold in transport van lasted “for only two days” and did not cause “condition so extreme
as to violate contemporary standards of decency”); Nguyen, 2019 WL 429678, at *6 (finding
objective seriousness of deprivation sufficiently alleged based on 15-day van trip during which
prisoners endured purposefully reckless driving which resulted in specific physical injuries;
necessity of eliminating bodily waste in van due to insufficient hygiene stops; extreme
temperatures due to van lacking ventilation and air conditioning; riding in complete darkness and
in restraints; and forced sleep deprivation); see also King v. Berghuis, No. 1:10-cv-57, 2010 WL
565373, at *3 (W.D. Mich. Feb. 13, 2010) (“[A]bsent such extreme conditions raising serious risks
to prisoner health, the courts routinely have determined that claims concerning [cell] ventilation
were insufficient to state an Eighth Amendment claim.”) (collecting cases).
Furthermore, although Plaintiff alleges that he suffered an unspecified “internal injury” as
a result of the denial of medical attention following his 2-3 hour ordeal, this allegation is too vague
to support a plausible constitutional claim against PTS. To hold this corporate Defendant liable for
the infliction of any physical or emotional injury, Plaintiff cannot rely on a theory of respondeat
superior or vicarious liability for the actions of “D. Jensen and his partner employees,” Street v.
Corr. Corp. of Am., 102 F.3d 810, 817–18 (6th Cir. 1996), but must allege that the injury was
caused by the execution of some corporate policy or custom. Starcher v. Corr. Med. Sys., Inc., 7
F. App’x 459, 465 (6th Cir. 2001). Plaintiff has not alleged that these employees’ decisions were
guided by a corporate policy of withholding air conditioning as punishment, nor has he adequately
alleged that those decisions caused more than the harsh living conditions that unfortunately tend
to accompany incarceration. Bain, 2009 WL 4348598, at *4. The complaint thus fails to state any
viable claim against the lone Defendant, PTS.
CONCLUSION
For these reasons, the Court will dismiss the complaint for failure to state a claim upon
which relief may be granted.
An appropriate Order will be entered.
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE