Perkins v. S.C.C.F. Core Civic

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JEROME PERKINS, )

)

Plaintiff, )

)

v. ) NO. 3:22-CV-00005

)

S.C.C.F. CORE CIVIC, et al., ) JUDGE CAMPBELL

) MAGISTRATE JUDGE HOLMES

Defendants. )

MEMORANDUM OPINION

Plaintiff Jerome Perkins, #251906, an inmate of the South Central Correctional Facility in

Clifton, Tennessee, filed this pro se, in forma pauperis action under 42 U.S.C. § 1983 against

“S.C.C.F. Core Civic,” Warden f/n/u Perry, “R-DAP Program-Counselors”, Kimberly Atkins,

Amber Gunter, Holly Tatum, f/n/u Mallard, and f/n/u Burlisky, alleging violations of Plaintiff’s

civil and constitutional rights. (Doc. No. 1).

I. BACKGROUND

By Order and Memorandum Opinion entered on January 19, 2022, the Court conducted

the required screening of the complaint pursuant to the Prison Litigation Reform Act (“PLRA”),

28 U.S.C. §§ 1915(e)(2) and 1915A, and found that the complaint states colorable failure to protect

claims under 42 U.S.C. § 1983 against Defendants Atkins, Gunter, Burlisky, and Tatum in their

individual capacities. (Doc. Nos. 6 and 7). In addition, the Court directed the Clerk to remove the

“Trousdale Turner Core Civic”, f/n/u Grossman, f/n/u Gross, f/n/u Holmes, and f/n/u Lestor as

Defendants to this action due to an administrative error. (Id.) The Court found that, with respect to

all other claims and Defendants, the complaint fails to state claims upon which relief can be granted

under Section 1983. (Id.) The Court therefore dismissed those claims and Defendants not

specifically enumerated above, with one exception. (Id.) The Court permitted Plaintiff to file an

amended complaint (1) naming as Defendants Chief of Security Coleman, Unit Manager Sarratt,

Corrections Officer Griffon, an as-yet identified unit manager, and other as-yet identified nurses

and staff members and (2) describing how each individual acted with deliberate indifference to

Plaintiff’s serious medical needs. (Id.)

The Court instructed Plaintiff that, if he wished to file an amended complaint, his amended

complaint must be filed within 30 days of entry of the Court’s Order. (Doc. No. 7 at 3). The Court

indicated that, upon receipt of an amended complaint, the Court would screen any new claims

raised as required by the PLRA. (Id.)

Plaintiff now has timely filed an amended complaint (Doc. No. 8), a “Notice of Filing

Adding Amended Complaint” (Doc. No. 9), a “Notice of Filing R-Dap Rules and Handbook”

(Doc. No. 10), and a “Notice of Letter re: TDOC” (Doc. No. 11). The amended complaint is before

the Court for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C.

§§ 1915(e)(2) and 1915A. In his amended complaint, Plaintiff also seeks to revive claims and

Defendants previously dismissed by the Court. Therefore, the Court will begin with a review of

those claims.

II. RULE 54 REVIEW

Rule 54(b) of the Federal Rules of Civil Procedure gives district courts broad discretion to

revise interlocutory orders (like the Court’s prior Order) in order to prevent manifest injustice. See

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (“[E]very order

short of a final decree is subject to reopening at the discretion of the district judge.”); Rodriguez v.

Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004). “This authority

allows district courts ‘to afford such relief from [interlocutory orders] as justice requires.’” Id.

(quoting Citibank N.A. v. Fed. Deposit Ins. Corp., 857 F. Supp. 976, 981 (D.D.C. 1994)).

“Traditionally, courts will find justification for reconsidering interlocutory orders when there is

(1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct

a clear error or prevent manifest injustice.” Rodriguez, 89 F. App'x at 959. “This standard

obviously vests significant discretion in district courts.” Id. at 959 n.7. The Court finds it

appropriate under the circumstances to reconsider its prior order, which was not a final decree in

this case.

First, in its Order and accompanying Memorandum Opinion entered on January 19, 2021,

the Court dismissed Plaintiff’s claim against R-DAP Counselor f/n/u Mallard because the

complaint failed to allege any specific personal involvement by Defendant Mallard in the events

described in the complaint. (Doc. No. 6 at 6). In the amended complaint and supporting documents,

however, Plaintiff clarifies that Defendant Mallard is one of the R-DAP counselors who failed to

protect Plaintiff from a known risk to his personal safety and/or failed to intervene when Plaintiff

was being attacked by a “mob” of white inmates on November 8, 2021. (Doc. No. 8 and 1).

Plaintiff alleges that the R-DAP counselors “could have . . . did [sic] something before [Plaintiff]

got jumped but they didn’t and they all knew that [illegible] was fixing to turn deadly in a matter

of minutes . . . . These counselors all did know and broke[] security and left me in a pod by myself

to get jumped!” (Doc. No. 9 at 2).

The Court finds that these new allegations, considered along with Plaintiff’s allegations set

forth in the original complaint regarding the R-DAP counselors, state colorable failure to

protect/intervene claims against Defendant Mallard in his/her individual capacity. See Carico v.

Benton, Ireland, and Stovall, 68 F. App'x 632, 639 (6th Cir. 2003) (holding that, where an officer

provides an opportunity for attack and does nothing or stands idly by while an attack takes place

without intervening, he violates the attacked prisoner's constitutional rights). Thus, the Court will

revise its prior Order pursuant to Rule 54(b) to permit this claim to proceed for further

development.

Second, in its Order and accompanying Memorandum Opinion entered on January 19,

2021, the Court dismissed Plaintiff’s claim against CoreCivic because the complaint made no

allegation regarding a “policy or custom” of CoreCivic. (Doc. No. 6 at 5-6). However, in the

amended complaint, Plaintiff alleges that CoreCivic has a policy or custom of employing high-

level employees who knowingly permit inmates who are gang members to “run the prison,” refuse

to intervene in inmate gang members’ attacks against other inmates, and sometimes instigate such

attacks. (Doc. No. 8 at 3-4). The Court finds that these allegations state a colorable claim against

CoreCivic under Section 1983. See Savoie, 673 F.3d 488, 494. Thus, the Court will revise its prior

Order pursuant to Rule 54(b) to permit Plaintiff’s Section 1983 claim against CoreCivic to proceed

for further development.

III. PLRA SCREENING STANDARD

Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any portion of a civil complaint

filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or

seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly

requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a

governmental entity or officer or employee of a governmental entity,” id. § 1915A(a), and

summary dismissal of the complaint on the same grounds as those articulated in Section

1915(e)(2)(B). Id. § 1915A(b).

The court must construe a pro se complaint liberally, United States v. Smotherman, 838

F.3d 736, 739 (6th Cir. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and accept the

plaintiff’s factual allegations as true unless they are entirely without credibility. See Thomas v.

Eby, 481 F.3d 434, 437 (6th Cir. 2007) (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)).

Although pro se pleadings are to be held to a less stringent standard than formal pleadings drafted

by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110

(6th Cir. 1991), the courts’ “duty to be ‘less stringent’ with pro se complaints does not require us

to conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation

omitted).

IV. SECTION 1983 STANDARD

Title 42 U.S.C. § 1983 creates a cause of action against any person who, acting under color

of state law, abridges “rights, privileges, or immunities secured by the Constitution and laws . .

. .” To state a claim under Section 1983, a plaintiff must allege and show two elements: (1) that

he was deprived of a right 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. Dominguez v. Corr. Med.

Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Sigley v. City of Panama Heights, 437 F.3d 527,

533 (6th Cir. 2006)); 42 U.S.C. § 1983.

V. FACTS ALLEGED IN AMENDED COMPLAINT

The amended complaint alleges that, while incarcerated at the SCCF on November 8, 2021,

Plaintiff was attacked by multiple inmates after which Captain f/n/u Mase, Nurse f/n/u Austin,

Gang Unit f/n/u Franks, I-A f/n/u Beckum, Chief of Security f/n/u Coleman, Unit Manager f/n/u

Sarratt, R-DAP Counselors (Burlisky, Gunter, Aktins, and Tatum), and Corrections Officer f/n/u

Griffton laughed at Plaintiff and “did nothing” for him when he sought medical treatment for his

injuries. (Doc. No. 8 at 1). These Defendants observed “bruises and pumps [sic] all over

[Plaintiff’s] face and body.” (Doc. No. 9 at 1). Officer Griffton asked Plaintiff if he was going to

kill himself and, when Plaintiff told him he was not, Officer Griffton said he could not help him.

(Doc. No. 8 at 1-2). Plaintiff told Defendants that his head was hurting, and Defendants told

Plaintiff that “it was [his] fault and they was [sic] not going to do nothing [sic] for [Plaintiff].” (Id.

at 2).

In a supplement to his amended complaint (Doc. No. 10), Plaintiff alleges that he presently

is being held in protective custody in a “nasty”, smelly cell for 24 hours a day with no recreation.

(Id. at 2). He is permitted to use the telephone only once a month and he is not allowed to order

food off the commissary list. He is only allowed three showers per week. While in protective

custody, Plaintiff is unable to earn “good days” and “behavior credit.” (Id.) Plaintiff has been in

protective custody for three months.

VI. ANALYSIS

A. Denial of Medical Treatment

The amended complaint alleges that Defendants Captain Mase, Nurse Austin, Gang Unit

Franks, I-A Beckum, Chief of Security Coleman, Unit Manager Sarratt, R-DAP Counselors

(Burlisky, Gunter, Aktins, and Tatum), and Corrections Officer Griffton failed to provide needed

medical care to Plaintiff. Failure to provide medical care may give rise to a violation of a prisoner’s

rights under the Eighth Amendment. See Estelle, 429 U.S. 97, 104 (deliberate indifference to

serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain

proscribed by the Eighth Amendment). A claim of deliberate indifference to a prisoner’s medical

or mental health needs under the Eighth Amendment has both an objective and subjective

component. Rouster v. Cnty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014). A plaintiff satisfies

the objective component by alleging that the prisoner had a medical need that was “sufficiently

serious.” Id. (quoting Farmer, 511 U.S. at 834). A plaintiff satisfies the subjective component “by

alleging facts which, if true, would show that the official being sued subjectively perceived facts

from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that

he then disregarded that risk.” Id. Deliberate indifference “entails something more than mere

negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts or

omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.

Under these standards, “a complaint that a physician has been negligent in diagnosing or

treating a medical condition does not state a valid claim of medical mistreatment under the Eighth

Amendment. Medical malpractice does not become a constitutional violation merely because the

victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429

U.S. at 106. In addition, the Sixth Circuit distinguishes “between cases where the complaint alleges

a complete denial of medical care and those cases where the claim is that a prisoner received

inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Where

“a prisoner has received some medical attention and the dispute is over the adequacy of the

treatment, federal courts are generally reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law.” Id. A prisoner’s difference of opinion

regarding diagnosis or treatment also does not rise to the level of an Eighth Amendment violation.

Estelle, 429 U.S. at 107.

Here, the amended complaint alleges that Plaintiff was denied any medical treatment by

Captain Mase, Nurse Austin, Gang Unit Franks, I-A Beckum, Chief of Security Coleman, Unit

Manager Sarratt, R-DAP Counselors (Burlisky, Gunter, Aktins, and Tatum), and Corrections

Officer Griffton for the injuries Plaintiff sustained during the November 8, 2021 attack. Although

in some instances prison non-medical staff have no role in the medical treatment provided to

inmates, here Plaintiff alleges that Mase, Franks, Beckum, Coleman, Sarratt, Burlisky, Gunter,

Aktins, Tatum, and Griffton controlled whether Plaintiff received medical treatment and denied

any treatment to him. Further, the amended complaint alleges that, in denying Plaintiff medical

treatment, these Defendants knew of and disregarded an excessive risk to Plaintiff’s health, along

with Nurse Austin. Cf. Carson v. Hamblen Cnty., No. 2:15-cv-337, 2017 WL 3038135, at *5, 9

(E.D. Tenn. July 17, 2017) (dismissing inmate’s Section 1983 claim, finding plaintiff had

presented no evidence that defendants played any role in the medical care provided to diabetic

inmate or knew of and disregard an excessive risk to inmate’s health or safety). The Court finds

that these allegations sufficiently state colorable deliberate indifference to serious medical needs

claim under Section 1983 against Captain Mase; Nurse Austin; Gang Unit Franks; I-A Beckum;

Chief of Security Coleman; Unit Manager Sarratt; R-DAP Counselors Burlisky, Gunter, Aktins,

and Tatum; and Corrections Officer Griffton, all in their individual capacities. These claims will

proceed.

B. Violation of Prison Policy

The amended complaint, as supplemented by Plaintiff’s subsequent filings, alleges that

several Defendants violated SCCF policy and/or the rules of the R-DAP program. (Doc. No. 10 at

1-2).

Alleged violations of prison or Tennessee Department of Correction policies are not

actionable under Section 1983. See Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995)

(stating that, after Sandin, it became clear that mandatory language in prison regulations does not

create a liberty interest protected by the due process clause); Upshaw v. Jones, No. 14-2534-JDT-

tmp, 2015 WL 348626, at *4 (W.D. Tenn. Jan. 26, 2015); Levine v. Torvik, 986 F.2d 1505, 1515

(6th Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99, 111

(1995). Consequently, the Court finds that the amended complaint fails to state Section 1983

claims arising from any Defendant’s alleged failure to follow facility policies.

C. Conditions of Confinement in Protective Custody

The amended complaint, as supplemented by Plaintiff’s subsequent filings, alleges that the

conditions of confinement in protective custody violate his Constitutional rights.

The Constitution does not protect a prisoner from unpleasant prison experiences. Ivey v.

Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Nor does the Constitution mandate comfortable

conditions of confinement. Rhodes v. Chapman, 452 U.S. 337 (1981). The Eighth Amendment of

the United States Constitution imposes an obligation to provide prisoners with reasonably adequate

food, clothing, shelter, sanitation, recreation, and medical care. Grubbs v. Bradley, 552 F. Supp.

1052, 1119-1124 (M.D. Tenn. 1982). The failure to provide such necessities is a violation of an

inmate’s right to be free from cruel and unusual punishment. Bellamy v. Bradley, 729 F.2d 416

(6th Cir. 1984).

Plaintiff states that it is not fair that he has been placed in protective custody. However, a

prisoner has no inherent constitutional right to be released from protective custody upon request.

Howard v. Grinage, 6 F.3d 410, 412 (6th Cir. 1993), effectively overruled on other grounds by

Sandin v. Conner, 515 U.S. 472 (1995); see also Meachum v. Fano, 427 U.S. 215, 224 (1976) (a

prisoner has no protected liberty interest in a particular security classification). Plaintiff sought to

be placed in protective custody. There has been no showing that the threat to Plaintiff that resulted

in his segregation no longer exists.

Plaintiff alleges that, while in protective custody, he is not allowed to order food off the

commissary list, he is only allowed three showers per week, he can only use the telephone once a

month, he is not being afforded any recreation time, and he is unable to earn good behavior credits.

As a general matter, there is no federal constitutional right of access to a jail or prison

commissary. See Wolfe v. Alexander, No. 3:11-cv-0751, 2014 WL 4897733, at *8 (M.D. Tenn.

Sept. 30, 2014) (citing Newell v. Ruth, No. 1:11-cv-86, 2014 WL 4411045, at *9 (E.D. Tenn. Sept.

8, 2014) (“[C]ommissary access is a privilege, not a right.”)); see also Grady v. Garcia, 506 F.

App’x 812, 814-15 (10th Cir. 2013) (finding no due process claim where the plaintiff was denied

canteen privileges for 105 days); Tokar v. Armontrout, 97 F.3d 1078, 1083 (8th Cir. 1996) (stating

that “we know of no constitutional right of access to a prison gift or snack shop”). Consequently,

Plaintiff cannot state a claim for violation of his constitutional rights based on commissary

restrictions.

With respect to Plaintiff’s complaints about showers, “[r]outine discomfort is ‘part of the

penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian, 503

U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence, “extreme deprivations are

required to make out a conditions-of-confinement claim.” Id. Allegations about temporary

inconveniences do not demonstrate that the conditions fell beneath 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). In Chandler v. Wells, No. 1:18-cv-871, 2018 WL 447415,

(W.D. Mich. Sept. 19, 2018), the court found that the prisoner-plaintiff’s claim that a defendant

had denied him one of his three weekly showers “falls far short of demonstrating an Eighth

Amendment claim.” Id. at *3. In Richmond v. Settles, 450 F. App’x 448 (6th Cir. 2011), the Sixth

Circuit found that the denial of a shower for seven days does not violate the Eighth Amendment.

Id. at 455. Likewise, Plaintiff here fails to state an Eighth Amendment claim based on the facility’s

three-showers-a-week policy for inmates housed in protective custody.

“[A]ccess to a phone is a privilege, not a basic human need or requirement.” Martinez v.

Gore, No. 5:21-CV-P50-TBR, 2021 WL 2269987, at *3 (W.D. Ky. June 3, 2021). Without a

showing that basic human needs were not met, the denial of privileges cannot establish an Eighth

Amendment violation. See id. (citing Evans v. Vinson, 427 F. App'x 437, 443 (6th Cir. 2011)); see

also Allen v. Alexsander, No. 2:16-CV-245, 2017 WL 2952929, at *5 (W.D. Mich. July 11, 2017)

(“Although it is clear that Plaintiff was denied phone privileges for 90 days, he does not allege or

show that he was denied basic human needs and requirements.”)). “[P]risoners have no per se

constitutional right to use a telephone.” United States v. Footman, 215 F.3d 145, 155 (1st Cir.

2000). It therefore follows that an inmate has no right to unlimited telephone use. See Washington

v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994); see Betar v. Advance Corr., No. 4:17CV-P37-JHM,

2017 WL 2884539, at *6 (W.D. Ky. July 6, 2017) (finding that prisoner-plaintiff had not alleged

a constitutional violation with regard to access to a telephone where he had not alleged that he

lacked access to other means of communicating with his attorney). Therefore, Plaintiff's claim

based on limited access to a telephone must be dismissed for failure to state a claim.

The amount of exercise that a prisoner is provided need only comport with the “‘minimal

civilized measure of life’s necessities.’” Walker v. Mintzes, 771 F.2d 920, 927 (6th Cir. 1985)

(quoting Rhodes, 452 U.S. 337, 347 ); Jones v. Stine, 843 F. Supp. 1186, 1193 (W.D. Mich. 1994)

(citing Walker, 771 F.2d at 927-28 (6th Cir. 1985)) (acknowledging that the Sixth Circuit, applying

Supreme Court precedent, has recognized that outdoor recreation, in some undefined form and

amount, is necessary for inmates’ well-being). Therefore, a total denial of recreational

opportunities may violate the Constitution. See Walker, 771 F.2d at 927-28; McNabb v. Long, No.

3:18-cv-0067, 2018 WL 2318342, at *4 (M.D. Tenn. May 22, 2018) (finding that prisoner-plaintiff

stated a colorable Eighth Amendment claim when he alleged that jail has a policy of denying

inmates all outdoor recreation and exercise). Although the Sixth Circuit has not defined a minimum

standard for recreation for adult prisoners, in its opinion in Rodgers v. Jabe, 43 F.3d 1082, 1087-

1088 (6th Cir. 1995), the Court suggested that an hour of exercise per day, five times a week, is

the constitutional minimum for inmates who were otherwise confined to their cells for the entire

day. Id. at 1087.

Here, Plaintiff alleges that he is not afforded any recreation time while in protective

custody, outdoor or indoor, and this deprivation has been occurring for three months. However,

Plaintiff fails to identify who is responsible for creating or implementing this rule or policy.

Without a proper named Defendant, this claim must be dismissed. The claim will be dismissed

without prejudice.

Finally, Plaintiff alleges that, while in protective custody, he is unable to earn “good day”

or behavior credits. Under the Heck doctrine:

In order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court's issuance of a writ of habeas corpus, 28

U.S.C. § 2254.

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Edwards v. Balisok, 520 U.S. 641 (1997), the

Supreme Court extended the application of Heck to prison disciplinary proceedings. Later, in

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), the Supreme Court reemphasized that a “state

prisoner's Section 1983 action is barred (absent prior invalidation)-no matter the relief sought

(damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to

conviction or internal prison proceedings)-if success in that action would necessarily demonstrate

the invalidity of confinement or its duration[.]” Therefore, Plaintiff's Section claims based on lost

good time must be dismissed for failure to state a claim upon which relief may be granted.

VI. CONCLUSION

Pursuant to Federal Rule of Civil Procedure 54, the Court will revise its Order of January

19, 2022 to permit failure to protect/intervene claims under Section 1983 to proceed against

Defendants Mallard and CoreCivic.

Having screened the amended complaint pursuant to the PRLA, the Court further finds that

Plaintiff states colorable deliberate indifference to serious medical needs claim under Section 1983

against Captain Mase; Nurse Austin; Gang Unit Franks; I-A Beckum; Chief of Security Coleman;

Unit Manager Sarratt; R-DAP Counselors Burlisky, Gunter, Aktins, and Tatum; and Corrections

Officer Griffton, all in their individual capacities. These claims will proceed for further

development.

All other claims raised in the amended complaint fail to state claims upon which relief can

be granted under Section 1983. Accordingly, those claims and Defendants will be dismissed.

An appropriate Order will be entered.

hl X. Cody

Vile = Cpl

UNITED STATES DISTRICT JUDGE

13