Watison v. Perry, Warden

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

COLUMBIA DIVISION

RAYMOND WATISON, )

)

Plaintiff, )

)

v. ) NO. 1:20-cv-00081

)

GRADY PERRY, et al., ) JUDGE CAMPBELL

)

Defendants. )

MEMORANDUM AND ORDER

Plaintiff Raymond “King Belal” Watison, an inmate confined in the South Central

Correctional Facility (SCCF) in Clifton, Tennessee, filed a pro se Complaint for alleged

violations of his civil rights pursuant to 42 U.S.C. § 1983, along with an Application to Proceed

in District Court Without Prepaying Fees or Costs (“IFP Application”). (Doc. Nos. 1, 2.) The

matter is before the Court for a ruling on Plaintiff’s IFP Application and an initial review of his

Complaint pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e)(2) and

1915A, and 42 U.S.C. § 1997e.

I. APPLICATION TO PROCEED AS A PAUPER

Under the PLRA, a prisoner bringing a civil action may be permitted to file suit without

prepaying the filing fee required by 28 U.S.C. § 1914(a). 28 U.S.C. § 1915(a). Because it appears

from Plaintiff’s submission that he lacks sufficient financial resources from which to pay the full

filing fee in advance, the Court GRANTS his motion (Doc. No. 2) to proceed IFP in this matter.

However, under Section 1915(b), Plaintiff nonetheless remains responsible for paying the

full filing fee. The obligation to pay the fee accrues at the time the case is filed, but the PLRA

provides prisoner-plaintiffs the opportunity to make a “down payment” of a partial filing fee and

to pay the remainder in installments. Accordingly, Plaintiff is hereby ASSESSED a $350 filing

fee, to be paid as follows:

(1) The custodian of Plaintiff’s inmate trust-fund account at the institution where he now

resides is DIRECTED to submit to the Clerk of Court, as an initial payment, “20 percent of the

greater of – (a) the average monthly deposits to Plaintiff’s account; or (b) the average monthly

balance in the plaintiff’s account for the 6-month period immediately preceding the filing of the

complaint.” 28 U.S.C. § 1915(b)(1).

(2) After the initial filing fee is fully paid, the trust-fund officer must withdraw from

Plaintiff’s account and pay to the Clerk monthly payments equal to 20% of all deposits credited

to Plaintiff’s account during the preceding month, but only when the amount in the account

exceeds $10. Such payments must continue until the entire $350 filing fee is paid in full. Id.

§ 1915(b)(2).

(3) Each time the trust account officer makes a payment to this Court as required by this

Order, he must print a copy of the prisoner’s account statement showing all activity in the

account since the last payment made in accordance with this Order and submit it to the Clerk

along with the payment. All submissions to the Court must clearly identify Plaintiff’s name and

the case number as indicated on the first page of this Order, and must be mailed to: Clerk, United

States District Court, Middle District of Tennessee, 801 Broadway, Nashville, TN 37203.

The Clerk of Court is DIRECTED to send a copy of this Order to the Warden of the

prison in which Plaintiff is currently housed to ensure that the custodian of Plaintiff’s inmate

trust account complies with the portion of 28 U.S.C. § 1915 pertaining to payment of the filing

fee. If Plaintiff is transferred from his present place of confinement, the custodian MUST ensure

that a copy of this Order follows Plaintiff to his new place of confinement for continued

compliance with this Order.

II. INITIAL REVIEW

A. Standard

Title 28 U.S.C. § 1915(e)(2) requires the Court to conduct an initial review of any

complaint filed IFP, and to dismiss the complaint if it is facially frivolous or malicious, if it fails

to state a claim upon which relief may be granted, or if it seeks monetary relief against a

defendant who is immune from such relief. In reviewing the complaint to determine whether it

states a plausible claim, “a district court must (1) view the complaint in the light most favorable

to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G

Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d

461, 466 (6th Cir. 2009) (citations omitted)). A pro se pleading 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) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Plaintiff sues under 42 U.S.C. § 1983, which confers a private federal right 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). To state a Section 1983 claim, a plaintiff must allege: (1) a

deprivation of rights secured by the Constitution and laws of the United States, and (2) that “the

deprivation was caused by a person acting under color of state law.” Tahfs v. Proctor, 316 F. 3d

584, 590 (6th Cir. 2003) (citations omitted); 42 U.S.C. § 1983.

B. Plaintiff’s Allegations

Plaintiff sues SCCF Warden Grady Perry, Associate Warden Carter, Assistant Chief of

Security Coleman, Sergeants Tarnwaski, Tyler Barnett, and White, and Officer Carpenter, in

their official and individual capacities. (Doc. No. 1 at 1–2.) He alleges that on October 9, 2020,

he “refused to handover the handcuffs” to Carpenter and Tarnwaski until the air ventilation

system, which had been off for two days, was turned on. (Id. at 4.) Carpenter and Tarnwaski left

the pod, and the air was turned on. The “CAT team” then came to Plaintiff’s cell to retrieve the

handcuffs, and Plaintiff complied and turned over the handcuffs. (Id.) CAT team members then

informed Plaintiff that they were to take Plaintiff’s property, including his legal records, on

orders from Coleman, and that they would use force to do so if necessary. (Id.) Plaintiff

“declined to handover his legal property,” and the CAT team left the pod. (Id.) Tarnwaski later

returned with three other prison employees with riot gear, including a shield, a nightstick, and

cans of pepper spray. (Id. at 5.) Plaintiff yelled “all this for some legal property?”, to which

Tarnwaski responded “don’t bitch up now Mr. South Central.” (Id.) Plaintiff alleges that

response represents “the ‘name calling’ used by prison officials, toward the plaintiff for filing

civil suits.” (Id.)

Plaintiff was handcuffed and escorted by CAT team members to another area of the

prison, where he was stripped and allowed to keep only his underwear and a pair of shower

shoes, before being returned to a cell bereft of any property, including bedding, clothing, hygiene

items, legal or religious personal property. (Id.) With materials passed through a crack in the wall

by a neighboring inmate, Plaintiff submitted a grievance against Coleman. (Id.) The grievance

response from Carter advised that Plaintiff’s property was taken “due to you[r] covering your

windows and staff not being able to see.” (Id. at 6.) The response stated that covering the

windows was a violation of policy, but Plaintiff suggests that the fact that he was not issued a

disciplinary charge for that infraction means the true motivation to take his property was

retaliation. (Id.) The grievance committee recommended that Plaintiff’s legal property be

returned, and it was returned approximately a week later, on October 17. (Id.) However, Plaintiff

alleges some of his legal materials were missing from the returned property, including thirty-two

pictures and documents that are “crucial and essential” to a pending appeal which “was denied

on November 19, 20[20]” but in which Plaintiff had timely requested re-hearing,1 as well as

discovery in a case in which Coleman and Perry are defendants, Watison v. Perry, et al., No.

1:20-cv-00008 (M.D. Tenn.). (Id. at 6–7.) Plaintiff claims that Coleman’s “confiscation and

destruction” of his legal papers, therefore, “denied plaintiff court access.” (Id. at 7.) Specifically,

Plaintiff alleges that, if a pending motion for rehearing an appeal is denied, he will need the

missing materials to seek discretionary review in the Tennessee Supreme Court and will suffer

prejudice to the litigation without them. (Id.) Plaintiff has received no response to his efforts to

reclaim his missing legal materials, including a prison property claim form and a letter to the

attorney representing Coleman in the other suit. (Id.)

Plaintiff also alleges that Carter, Coleman, Tarnwaski, White, Barnett, and Carpenter

deprived him of the “minimal civilized measures of life’s necessities” by causing him to spend

seven days without showers, outdoor recreation, cleaning or personal hygiene supplies, clothing,

or bedding. (Id.) Between October 10 and October 17, Defendants Carter, White, Barnett, and

Tarnwaski personally refused to provide Plaintiff with those items or activities, and Coleman and

Carpenter issued orders to other staff not to provide him with anything. (Id. at 7–8.) When

1 The Court takes judicial notice of the November 19, 2020 decision affirming the dismissal of

Plaintiff’s state petition for writ of coram nobis. See Watison v. State, No. W2019-01650--CCAR3-ECN,

2020 WL 6821793 (Tenn. Crim. App. Nov. 19, 2020) (affirming denial of writ based on lack of evidence;

declining to address trial court’s secondary finding that petition was untimely). The Complaint in the case

at bar was signed on December 4 and postmarked on December 7, 2020. (Doc. No. 1 at 10, 12.)

Coleman was personally in the pod, Plaintiff asked him why he (Plaintiff) was being denied

property and privileges, and Coleman answered “I’m not giving you anything” and “smiled in

Plaintiff[’s] face.” (Id. at 8.) At one point, Warden Grady Perry, who is also a defendant in one

of Plaintiff’s other lawsuits, came into the pod and told Plaintiff “you had your window covered”

in response to Plaintiff’s asking the reason for his restrictions. (Id. at 9.)

Plaintiff claims that the deprivations he suffered constituted “cruel and unusual

punishment, in retaliation for having filed civil suit against Mr. Larry Coleman.” (Id. at 8.) He

vaguely suggests that Coleman demanded that Plaintiff dismiss his lawsuit against Coleman in

exchange for the return of his missing property. (Id. at 3.) He alleges that the conditions in which

he was held were “unhealthy, unsanitary, dangerous and offensive,” including a toilet “mildewed

with feces,” and nighttime temperatures so cold that Plaintiff tore open the mattress to crawl

inside it. (Id. at 8–9.) The inability to clean, bathe, or brush his teeth led to stains and decay on

his teeth, cracked skin on his feet, and “uncontrollable itching” around his genitals from wearing

the same underwear for a week. (Id. at 9.)

As relief, Plaintiff seeks compensatory and punitive damages from the Defendants in

excess of $100,000. (Id. at 9–10.)

C. Analysis

The Complaint asserts claims for violations of Plaintiff’s First Amendment rights to be

free from retaliation and to access the courts, and for violation of his Eighth Amendment right to

be free from cruel and unusual punishment.

To state a plausible claim of First Amendment retaliation, Plaintiff must allege “that (1)

he engaged in protected conduct, (2) the defendant took an adverse action that is capable of

deterring a person of ‘ordinary firmness from continuing to engage in that conduct,’ and (3) ‘the

adverse action was motivated at least in part by the [prisoner’s] protected conduct.’” Hill v.

Lappin, 630 F.3d 468, 472 (6th Cir. 2010) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394,

398 (6th Cir. 1999) (en banc)). Plaintiff sufficiently alleges that he engaged in protected conduct

by filing a civil rights lawsuit against Defendants Coleman and Perry. See Bell v. Johnson, 308

F.3d 594, 607 (6th Cir. 2002) (“[P]rotected conduct, for the purposes of a First Amendment

retaliation claim, encompasses a prisoner’s efforts to access the courts in direct appeals, habeas

corpus actions, and civil rights claims.”) (citing Thaddeus-X, 175 F.3d at 391). He also

adequately alleges, for purposes of initial review, that the adverse actions taken against him––the

confiscation of his legal materials and the destruction of papers and photographs that were

directly related to his earlier-filed lawsuit, and the deplorable conditions of his confinement

between October 10 and 17, 2020––were sufficiently severe to deter a person of ordinary

firmness from continuing to litigate that suit against his jailors. Finally, Plaintiff plausibly alleges

at this early stage that such actions were motivated not by his covering of his cell window or

engaging in other misbehavior, but by his maintenance of lawsuits against Coleman and Warden

Perry, as supported by his allegations that no disciplinary charge was filed against him and that

Coleman intimated that Plaintiff’s property could be returned if his pending lawsuit were

dismissed. Plaintiff’s retaliation claim will be allowed to proceed for further development.

Plaintiff also alleges that the retaliatory deprivation of his confiscated legal materials

violated his First Amendment right of access to the courts.2 Inmates have a fundamental

2 Plaintiff does not allege that the loss or destruction of his legal materials constituted a deprivation

of property in violation of due process. Even if the Court were to liberally construe the Complaint to

assert such a claim, it would be subject to dismissal due to Plaintiff’s failure to plead the inadequacy of

post-deprivation remedies under state law. See Copeland v. Machulis, 57 F.3d 476, 479–80 (6th Cir.

1995); Torrez v. Corr. Corp. of Am., No. CV 10-2093-PHX-MHM, 2010 WL 4922876, at *5–6 (D. Ariz.

Nov. 29, 2010) (holding that “availability of a common-law tort suit against a private prison employee

constitutes an adequate post-deprivation remedy” that “precludes a claim for violation of due process”).

constitutional right to access the courts. Bounds v. Smith, 430 U.S. 817, 821, 828 (1977),

abrogated on other grounds by Lewis v. Casey, 518 U.S. 343, 351 (1996). But in order to state a

claim for denial of such access, an inmate must allege an “actual injury” to a “nonfrivolous,”

“arguable” legal claim that involves an attack on his incarceration or challenge to the conditions

of his confinement. Lewis, 518 U.S. at 349, 353 & n.3, 355. Here, Plaintiff alleges that the

withholding of his legal materials would prejudice his ability to further appeal the decision

affirming the denial of his coram nobis3 challenge to his conviction. However, coram nobis is an

“‘extraordinary procedural remedy,’ filling only a ‘slight gap into which few cases fall,’”

Watison, 2020 WL 6821793, at *3 (quoting State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999)),

and it had already been denied, and that denial affirmed, by the time Plaintiff’s legal materials

were confiscated. The U.S. Supreme Court, in considering the requirements for pleading access-

to-courts claims, has highlighted “the need for care in requiring that the predicate claim be

described well enough [in the complaint] to apply the ‘nonfrivolous’ test and to show that the

‘arguable’ nature of the underlying claim is more than hope.” Christopher v. Harbury, 536 U.S.

403, 416 (2002). The Court finds that this standard is not met by the Complaint in this case,

which does not describe the nature of Plaintiff’s underlying claim at all, but only states that it

was awaiting ruling on a motion to rehear the denial of relief on appeal––a rather unhopeful

procedural posture. Accordingly, the Complaint fails to state a plausible First Amendment claim

for denial of access to courts.

Finally, Plaintiff claims that the conditions of his confinement between October 10 and

17, in addition to being retaliatory, violated his Eighth Amendment right to be free from cruel

3 Under Tennessee law, “a writ of error coram nobis will lie for subsequently or newly discovered

evidence relating to matters which were litigated at the trial if the judge determines that such evidence

may have resulted in a different judgment, had it been presented at the trial.” Tenn. Code Ann. § 40-26-

105(b).

and unusual punishment. These conditions included Plaintiff’s exposure to a toilet “mildewed

with feces,” an inability to clean, bathe, or brush his teeth, and the denial of clothing or bedding.

(Doc. No. 1 at 8–9.) “In the context of ‘conditions of confinement’ cases, the Eighth Amendment

is concerned only with ‘deprivations of essential food, medical care or sanitation’ or ‘other

conditions intolerable for prison.’” Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010) (quoting

Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “[T]he inmate must show that he is incarcerated

under conditions posing a substantial risk of serious harm.” Brown v. Bargery, 207 F.3d 863, 867

(6th Cir. 2000) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Courts have found this

requirement of objective seriousness unmet when “prison officials failed to provide [the]

prisoner with toilet paper for five days, and with soap, toothbrush, and toothpaste for ten days,”

and “when inmates endured, among other deprivations, no toiletries or clothing for six days.”

Flanory, 604 F.3d at 254 (citing cases). But Plaintiff also alleges that he was deprived of

bedding, and that his cell was so cold at night that he resorted to tearing open his mattress and

crawling inside it for warmth. (Doc. No. 1 at 9.) Similar conditions involving the lack of

sufficient clothing or bedding, combined with cell temperatures cold enough to produce physical

discomfort and to require the inmate to sleep between two mattresses, have been deemed

sufficient to support an Eighth Amendment claim. Burley v. Miller, 241 F. Supp. 3d 828, 838

(E.D. Mich. 2017) (citing, e.g., Chandler v. Baird, 926 F.2d 1057 (11th Cir. 1991), and Wright v.

McMann, 460 F.2d 126, 129 (2d Cir. 1972)). Plaintiff’s allegations are likewise sufficient for

purposes of initial review to establish the objective component of his Eighth Amendment claim.

Moreover, he adequately alleges that Defendants were subjectively, deliberately indifferent to

the harm Plaintiff suffered as a result of these conditions, insofar as they all were committed to

the 7-day term of his punishment regardless of his complaints. See Flanory, 604 F.3d at 254

(“The subjective component requires a showing that prison officials knew of, and acted with

deliberate indifference to, an inmate’s health or safety.”); (Doc. No. 1 at 8–9 (describing each

Defendant’s enforcement of his property restriction, loss of privileges, and lack of bedding and

hygiene items).) Plaintiff’s Eighth Amendment claim will be allowed to proceed.

The Court notes that Plaintiff sues the seven Defendants––all of whom are employed at

SCCF––in their official as well as individual capacities. (See Doc. No. 1 at 2.) Because

“individuals sued in their official capacities stand in the shoes of the entity they represent,”

Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citing Kentucky v. Graham, 473 U.S. 159,

165 (1985)), Plaintiff’s official-capacity claims against these Defendants are effectively claims

against CoreCivic,4 the private entity that operates SCCF pursuant to contract with the

government. Colbert v. Lindamood, No. 1:18-cv-00030, 2018 WL 2416201, at *5 & n.3 (M.D.

Tenn. May 29, 2018) (taking judicial notice of Tennessee Department of Correction website

showing that “CoreCivic is a private entity contracted to manage SCCF”). But in order to state a

plausible claim against CoreCivic, Plaintiff must allege that the execution of a specific corporate

policy or custom caused the harm of which he complains. Welch v. CoreCivic Inc., No. 3:17-cv-

01516, 2018 WL 5808728, at *1 (M.D. Tenn. Nov. 6, 2018) (citing Alkire, 330 F.3d at 815).

Although Plaintiff concludes his Complaint with the allegation that Defendants’ actions “ha[ve]

bec[o]me a systematic behavior and practice” towards him in order to induce him “to dismiss

civil suits and deter him from petitioning the court for redress of grievances” (Doc. No. 1 at 9),

he does not allege that any policy of CoreCivic motivated their conduct. Accordingly, the

colorable First and Eighth Amendment claims identified above will proceed against Defendants

only in their individual capacities.

4 See Sexton v. Lindamood, No. 1:16-cv-00071, 2019 WL 923787, at *13 (M.D. Tenn. Feb. 7,

2019), report and recommendation adopted, 2019 WL 914135 (M.D. Tenn. Feb. 25, 2019) (finding that

SCCF employees in their official capacity “stand in the shoes of their employer, CoreCivic”).

I. FURTHER PROCEEDINGS

As described above, the Court finds that the Complaint states nonfrivolous claims against

the seven named Defendants in their individual capacities. Accordingly, the Clerk 1s

INSTRUCTED to send Plaintiff service packets (blank summonses and USM 285 forms) for

each of these Defendants. Plaintiff MUST complete the service packets and return them to the

Clerk’s Office within 21 DAYS of the date of this Order. Upon return of the completed service

packets, PROCESS SHALL ISSUE.

The Court’s determination that the complaint states colorable claims for purposes of this

initial screening does not preclude the Court from dismissing any claim at any time for the

reasons set forth in 28 U.S.C. § 1915(e)(2), nor does it preclude any Defendant from filing a

motion to dismiss any claim under Federal Rule of Civil Procedure 12.

This action is REFERRED to the Magistrate Judge to enter a scheduling order for the

management of the case, to dispose or recommend disposition of any pretrial motions under 28

U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary, under Rule

72(b) of the Federal Rules of Civil Procedure and the Local Rules of Court.

It is so ORDERED.

UNITED STATES DISTRICT JUDGE

1]