# Shannon v. Risper

> District Court, M.D. Tennessee · September 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10436689

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** September 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10436689

## How later opinions describe it (automated extraction)

- stating that mandatory language in prison regulations does not create a liberty interest protected by the due process clause

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DAY’QUAN SHANNON, )
)
Plaintiff, )
) NO. 3:20-cv-00518
v. )
) JUDGE RICHARDSON
RUBENARD RISPER, et al., )
)
Defendants. )

MEMORANDUM OPINION
Before the Court is a pro se complaint for alleged violation of civil rights (Doc. No. 1),
filed pursuant to, e.g., 42 U.S.C. § 1983 by Plaintiff Day’Quan Shannon, an inmate of the
Trousdale Turner Correctional Center (TTCC) in Hartsville, Tennessee. Plaintiff also filed an
application to proceed in forma pauperis (IFP) (Doc. No. 4), which the Court will grant by Order
entered contemporaneously herewith. The complaint is now before the Court for an initial review
pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e)(2) and 1915A, and
42 U.S.C. § 1997e.
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
Plaintiff seeks to vindicate alleged violations of his 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 Cnty., 763 F.3d 592, 595 (6th Cir. 2014).
III. ALLEGATIONS AND CLAIMS
Plaintiff alleges that, on November 8, 2019, “CORE CIVIC and its officers” violated a

security policy in force at TTCC “by allowing inmates to exit their housing units armed with
weapons.” (Doc. No. 1 at 1.) He alleges that the metal detectors on each unit “are seldom
operational,” and that as a result of “[t]he respondents knowingly and willingly den[ying] [him]
the right to be secured while housed at CORE CIVIC, TTCC by failing to uphold its Institutional
Policy”1 as well as the correctional officers’ oath of office and state and federal criminal law, he
suffered eight stab wounds or lacerations. (Id. at 1–2 (citing Tenn. Code Ann. §§ 39-16-403, 41-
1-103 and 18 U.S.C. §§ 241, 242).) Plaintiff alleges that he insisted upon having his wounds treated
at an outside hospital for fear of internal bleeding, but that he “was denied that right which
constitutes conspiracy against rights.” (Id. at 1.) He states that he was returned to the same housing

unit after the attack, despite “a strong possibility of a subsequent attack” since two of his assailants
were also housed in the unit, “which constitutes negligence.” (Id. at 2.) Plaintiff further alleges
that an investigation into “employee misconduct and the negligence displayed by the Chief of
Security and other staff members” was not conducted, nor was the formal fact-finding procedure
required by prison policy. (Id.)
The complaint’s caption names Rubenard Risper as a Defendant, though Risper is not
mentioned in the body of the complaint. For purposes of this initial review, the Court presumes
that Risper is the “Chief of Security” referenced in the complaint. The Court will also liberally

1 Plaintiff identifies “Policy # 107.01(C) & (J)” but does not explain these policy provisions or how
they were violated.
construe the complaint to name CoreCivic, the private corporation that manages TTCC, as a
Defendant. As relief for the harms allegedly inflicted by Risper and CoreCivic’s “negligence,
breach of duty, and deprivation of rights,” Plaintiff asks the Court to award damages and impose
fines in the total amount of $5,500,000.00. (Id. at 2.)
IV. ANALYSIS

Although not explicitly named as such, the constitutional claim implicit in Plaintiff’s
allegations is an Eighth Amendment failure-to-protect claim. An Eighth Amendment violation
may occur when prison officials fail to protect one inmate from an attack by another inmate. See
Walker v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990). Risper and his employer CoreCivic are
proper defendants to such a claim, inasmuch as CoreCivic performs the traditional state function
of operating a prison and is thus a state actor for purposes of Section 1983, Street v. Corr. Corp.
of Am., 102 F.3d 810, 814 (6th Cir. 1996), though it may only be held liable for harms caused by
the execution of a corporate policy. Starcher v. Corr. Med. Sys., Inc., 7 F. App’x 459, 465 (6th
Cir. 2001).

However, “not all injuries suffered by an inmate at the hands of another prisoner result in
constitutional liability for prison officials under the Eighth Amendment.” Wilson v. Yaklich, 148
F.3d 596, 600 (6th Cir. 1998). In order to state a viable failure-to-protect claim, the inmate must
show that officials were deliberately indifferent “to a substantial risk of serious harm” to the
inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994); Greene v. Bowles, 361 F.3d 290, 294 (6th
Cir. 2004). To meet this standard, the inmate must show that officials were “subjectively aware of
the risk” and “disregard[ed] that risk by failing to take reasonable measures to abate it.” Greene,
361 F.3d at 294 (quoting Farmer, 511 U.S. at 847).
For these purposes, “[i]t does not matter whether the risk comes from multiple sources or
from one source, and it does not matter whether the prisoner is at risk for reasons personal to him
or because all the prisoners face the risk.” Mayoral v. Sheahan, 245 F.3d 934, 938–39 (7th Cir.
2001) (citing Farmer, 511 U.S. at 843–44); accord Street, 102 F.3d at 815 & n.12 (“An Eighth
Amendment plaintiff might demonstrate that he was subject to a substantial risk of serious harm

because he was subject to a specific risk of harm. That plaintiff cannot be required to show that he
was subject to a specific risk of harm, however.”). However, negligent disregard of a risk to
prisoner safety “is quite different” than deliberate indifference to the risk. Davidson v. Cannon,
474 U.S. 344, 348 (1986). An unintended injury resulting from lack of due care does not involve
the requisite level of subjective culpability to amount to cruel and unusual punishment, whereas
injury resulting from deliberate indifference to inmate safety does. See id. at 347–48; see also
Farmer, 511 U.S. at 837 (“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’;
it outlaws cruel and unusual ‘punishments.’”).
Accordingly, Plaintiff may not recover under Section 1983 for any negligent failure of

Risper or CoreCivic to secure his safety from the November 8, 2019 attack. His bare allegation
that Defendants “knowingly and willingly” declined to enforce unidentified security protocols, the
correctional officers’ oath of office, or applicable criminal laws (Doc. No. 1 at 2) is not sufficient
to establish a colorable claim of deliberate indifference to an identifiable risk to his safety. Nor
does he allege that the metal detector in his housing unit was in fact nonoperational, or that
Defendants knew it to be so. Even liberally construed, Plaintiff’s allegation that inmates were able
to carry weapons out of the unit on one particular day does not support the inference that Defendant
Risper knew of and disregarded a substantial risk of harm, or that the risk was perpetuated by
CoreCivic’s corporate supervision of TTCC. “Where a plaintiff alleges a constitutional violation
based on dangerous general prison conditions, there must be demonstrated a substantial risk of
inmate attacks [that were] longstanding, pervasive, well-documented, or expressly noted by prison
officials . . . and that the officials being sued were exposed to information concerning the risk and
thus, must have known about it.” Sullivan v. Graham, No. 09-CV-1311 TJM/DRH, 2011 WL
4424355, at *6 (N.D.N.Y. Aug. 5, 2011), report and recommendation adopted, No. 09-CV-1311,

2011 WL 4424350 (N.D.N.Y. Sept. 21, 2011) (citation and internal quotation marks omitted); see
also Wright v. City of Euclid, Ohio, 962 F.3d 852, 881 (6th Cir. 2020) (requiring that municipal
liability claim of failure to supervise be supported by “prior instances of unconstitutional conduct”
demonstrating that supervising organization “was clearly on notice” of a deficiency that was likely
to lead to injury). Plaintiff’s allegations fall short of stating a colorable claim that his injuries
resulted from Defendants’ deliberate indifference to his safety from attack by fellow inmates.
Nor do the alleged violations of applicable prison policies and procedures support a
separate constitutional claim. See Rimmer-Bey v. Brown, 62 F.3d 789, 790–91 (6th Cir. 1995)
(stating that mandatory language in prison regulations does not create a liberty interest protected

by the due process clause); see also Miles v. Antonini, No. 04-CV-74147, 2006 WL 1522616, at
*2 (E.D. Mich. May 30, 2006) (“the failure to follow a prison policy does not amount to a
constitutional violation”); Barhite v. Brown, No. 1:14-CV-218, 2014 WL 2918550, at *16 (W.D.
Mich. June 26, 2014) (“a violation of prison policy does not give rise to a claim in itself”); Wiley
v. Kentucky Dep’t of Corr., No. CIV.A. 11-97-HRW, 2012 WL 5878678, at *12 (E.D. Ky. Nov.
21, 2012) (“While the violation of a prison policy may constitute negligence in some cases, it does
not amount to a constitutional violation.”). Moreover, Plaintiff fails to state a claim based on his
allegations of a conspiratorial failure to send him for treatment at an outside hospital, the negligent
failure to house him in a different unit after the attack, and the failure to investigate the prison staff
following the attack, as he has no right to such accommodations or proceedings under the
Constitution. See King v. King, No. 3:08-0881, 2009 WL 2223305, at *2 (M.D. Tenn. July 20,
2009) (“The plaintiffs personal belief that he should have received a different type of treatment
or been sent to an outside hospital simply does not support a constitutional claim.”); Carter v.
Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (prisoners do not have “an inherent constitutional
right to placement in any particular security classification or housing assignment”); Gresham v.
Granholm, No. 2:09-cv-231, 2010 WL 104700, at *3 (W.D. Mich. Jan. 7, 2010) (dismissing
inmate’s Section 1983 claim for refusal to investigate alleged crime by staff).
CONCLUSION
One can sympathize with Plaintiff in light of the alleged attack and the alleged injuries he
suffered from it. It should go without saying that inmates should not be wantonly attacked and
intentionally injured by anyone, including fellow inmates. But such an occurrence does not a legal
claim make under Section 1983; without more, it does not support a claim under Section 1983,
and here, Plaintiff has not made the additional allegations he would need to make. For the reasons
set forth above, the Court finds that the complaint fails to state a claim upon which relief may be
granted, and that this case must therefore be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
An appropriate Order will enter.
CLE Richardson
cL Ruel
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436689. Public record. Not legal advice.