Bowles v. Tennessee Department of Correctional - CCA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MARIO BOWLES #490357, )

)

Plaintiff, )

)

v. ) NO. 3:22-cv-00032

)

TENNESSEE DEPARTMENT OF )

CORRECTIONAL - CCA, at al., )

)

Defendants. )

MEMORANDUM OPINION

Mario Bowles filed this pro se civil rights case under 42 U.S.C. § 1983 while he was

confined at Trousdale Turner Correctional Center (TTCC). He has since been transferred to

Whiteville Correctional Facility (WCFA). The Court previously directed Plaintiff to resolve the

filing fee and file an amended complaint. (Doc. No. 11). Plaintiff then filed two applications to

proceed as a pauper (Doc. Nos. 14, 20), a motion to extend the fee deadline (Doc. No. 27), two

amended complaints (Doc. Nos. 13, 16; Doc. No. 22),1 and several miscellaneous filings. (Doc.

Nos. 12, 15, 18, 21, 23–26, 28–29, 31–32). The Complaint is brought against the Tennessee

Department of Correction (TDOC), CoreCivic, TTCC, WCFA, eighteen TTCC staff members,

and thirty-five WCFA staff members. (Doc. No. 13 at 1–3; Doc. No. 16 at 3–5, 15). This case is

1 On the docket for this case, Doc. No. 13 (a completed complaint form) is titled “Amended Complaint,”

and Doc. No. 16 (a lengthy handwritten pleading) is titled “Second Amended Complaint.” These two

documents, however, appear to have arrived at the Court on the same day (September 23) and in the same

envelope. (See Doc. No. 13 at 1, 12–13 (“received” stamp and envelope); Doc. No. 16 (no separate

“received” stamp or envelope)). Moreover, Doc. No. 13 appears as though it may incorporate Doc. No. 16

by reference. (See Doc. No. 13 at 1, 4). Accordingly, the Court considers Doc. Nos. 13 and 16 together as

a single pleading. Doc. No. 22, meanwhile, is a subsequent pleading on another complaint form, but it

incorporates Doc. No. 16 by reference (Doc. No. 22 at 4), while providing much less detail than the prior

pleadings. The Court therefore considers Doc. Nos. 13 and 16 together as the operative complaint, and these

two filings will be collectively referred to as the “Complaint” going forward.

before the Court for initial review of the Complaint and a ruling on the pending motions. As

explained below, this case may continue for further development, and Plaintiff must consult the

accompanying Order for instructions to follow for the case to proceed.

I. Applications to Proceed as a Pauper

An inmate may bring a civil suit without prepaying the filing fee. 28 U.S.C. § 1915(a).

Both of Plaintiff’s applications to proceed as a pauper, signed under penalty of perjury, reflect that

he cannot pay the full filing fee in advance. (See Doc. Nos. 14, 20). Plaintiff has not submitted a

certified copy of his inmate trust account statement, but he has submitted documentation reflecting

that he has made a good faith effort to obtain it. (See Doc. No. 18-1 at 12 (copy of “Inmate Request

Form” in which Plaintiff requested an “indigent inquiry form filled out for court and a 6 months

average deposit confirming zero balance,” and a WCFA staff member with an illegible signature

responded, “we do not keep such forms on hand, you could try contacting education for this type

of document”); Doc. Nos. 20-1, 20-2 (Plaintiff’s signed statement that Case Manager Sain has

ignored or refused Plaintiff’s repeated requests to obtain a certified trust account statement)).

Because it appears that Plaintiff may not be at fault for failing to obtain a copy of his trust account

statement, the Court will grant Plaintiff’s applications for pauper status (Doc. Nos. 14, 20) and

assess the $350.00 filing fee as directed in the accompanying Order. 28 U.S.C. § 1915(b). If the

Court later determines that Plaintiff’s “allegation of poverty is untrue,” however, then Court must

dismiss the case. Id. § 1915(e)(2)(A). Plaintiff’s motion for an extension of time to resolve the fee

(Doc. No. 27) will be denied as moot.

II. Notices, Petitions, and Inquiries

Before reviewing the Complaint, the Court will address the collection of “notices,”

“petitions,” and “inquiries” filed by the Plaintiff. (Doc. Nos. 12, 15, 18, 21, 23–26, 28–29, 31–34).

Through these filings, Plaintiff seems to be seeking to give the Court periodic updates of his

conditions of confinement at WCFA.

Plaintiff is advised that these filings have no effect in this case, and the Court will not

consider them as part of its initial review of the Complaint. Federal lawsuits are not litigated

through advisory notices and updates of allegations. Defendants are only required to answer a

plaintiff’s “pleading,” in the form of a complaint or amended complaint, which must set forth a

plaintiff’s entire statement of the claim against the defendants. See Fed. R. Civ. P. 3 (civil action

commenced by filing complaint); Fed. R. Civ. P. 7(a) (limiting the types of permissible pleadings);

Fed. R. Civ. P. 8(a) (requirements for a pleading that states a claim for relief); Fed. R. Civ. P. 8(b)

(requirements for responding to a pleading). To change or add to the claims in a complaint, a

plaintiff must file an amended complaint, in compliance with Federal Rule of Civil Procedure 15

and Middle District of Tennessee Local Rule 15.01. Any other request for relief by a party must

be in the form of a proper motion that clearly states the relief sought and the grounds for seeking

it. Fed. R. Civ. P. 7(b).

In short, the filings that Plaintiff calls notices, petitions, and inquiries, do not contribute to

his litigation of this case, and Plaintiff should refrain from submitting similar filings going forward.

III. Initial Review

The Court must review and dismiss the Complaint if it is 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. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; 42 U.S.C. § 1997e(c)(1). Because

Plaintiff is representing himself, the Court must also hold the Complaint 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)).

A. Allegations

Liberally construing the Complaint and drawing all reasonable inferences in Plaintiff’s

favor, the Court has established the following summary of factual allegations that are potentially

relevant to the named Defendants. The Court notes, however, that the Complaint includes many

allegations that are unsupported by facts and/or unconnected to a named Defendant. Although

some of these conclusory or irrelevant allegations may be included in this summary for context,

many others will not be included, as they do not form the basis of a viable claim in this case. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotation marks omitted) (“A

pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of

action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further

factual enhancement.”).

1. Events at TTCC

On April 9, 2021, Plaintiff arrived at TTCC. (Doc. No. 16 at 6). Fearing for his safety,

Plaintiff refused to be transferred to the main compound because, as he told staff members at

intake, he had been mistaken for a gang member who was a “known hit-man on [the] street,” had

cooperated with law enforcement, and “had a hit on him for a lot of money.” (Id.).

On May 21, 2021, Case Manager Jackson told Plaintiff to go to the main compound. (Id.).

Plaintiff refused and tried to explain the danger of doing so. (Id.). Several TTCC staff members

arrived (Lt. Edmond Hill, Lt. Murray, Officer Rowe, and Officer Moore), handcuffed Plaintiff,

and took him to a housing unit in the main compound. (Id.). The unit manager told the staff

members to take Plaintiff to segregation, but they refused, forced Plaintiff in a cell, removed the

handcuffs, and locked Plaintiff in the cell. (Id.). A group of twenty-five gang members came to

Plaintiff’s cell, intending to kill him. (Id. at 7, 18). Some other inmates screamed, “That’s not

him!” and an officer assisted Plaintiff. (Id. at 7). Case Manager Smith obtained Plaintiff’s TOMIS

ID number and sent him to speak with Case Manager Mathews in an office. (Id.). Mathews looked

up Plaintiff’s information and found that he had an incompatible and a note “that some gang

bangers had a green light on [Plaintiff’s] head.” (Id.). Jackson then told Plaintiff to go back to his

original housing off the main compound. (Id.). When Plaintiff returned to his prior cell, he found

that all of his personal property had been stolen, including clothes, electronics, books, commissary

items, religious materials, legal materials, mail, and family photographs. (Id.).

On May 28, 2021, Case Manager Jackson and other TTCC staff members attempted to put

another inmate in Plaintiff’s cell, but Plaintiff refused. (Id.). Jackson took Plaintiff to segregation,

and because she was angry at Plaintiff, she retaliated against Plaintiff by not allowing him to bring

his television or commissary items. (Id.).

On June 11, 2021, Lt. Hill, Lt. Hawkins, and Officer Dicky again tried to force Plaintiff to

return to the main compound. (Id. at 7, 19). Plaintiff refused, claiming that such a transfer would

put his life in danger. (Id. at 19). And in retaliation for Plaintiff filing grievances, Hill and Hawkins

fabricated write-ups that prevented Plaintiff from being placed on protective custody and forced

him to remain at TTCC, while Hill and Officer Ottis took Plaintiff’s commissary items. (Id.).

On July 26, 2021, Lt. Hill tried to force an “unauthorized inmate” into Plaintiff’s cell, and

Plaintiff refused. (Id.). Hill then choked Plaintiff nearly to death, slammed him on the floor, and

threatened to kill Plaintiff if he wrote another grievance on Hill. (Id. at 7, 19). Plaintiff suffered

neck swelling, back pain, head pain, and difficulty swallowing. (Id. at 19). He did not receive

medical treatment. (Id.)

On August 6 or 7, 2021, Lt. Hill forced another inmate into Plaintiff’s cell. (Id.) Plaintiff

and his cellmate argued until August 13, when the cellmate told Hill that he would not be Hill’s

“puppet to hurt [Plaintiff].” (Id.). Hill, in a state of “emotional madness,” choked Plaintiff (who

was in handcuffs) on a sink, pulled Plaintiff to the middle of the pod, and slammed Plaintiff

headfirst on the floor. (Id. at 7, 19). Hill then pushed Plaintiff to another cell hard enough that

Plaintiff fell again. (Id. at 19). Plaintiff suffered injuries to his abdominal area, head, neck, back,

elbows, and knees. (Id. at 7, 19). Contract Monitor Brun and Captain Beaver saw this occur and

did nothing, and then refused to obtain medical care for Plaintiff. (Id.).

2. Transfer to WCFA

After months of hardship at TTCC, Plaintiff filed this lawsuit in January 2022, naming

several TTCC staff members as Defendants. (Id. at 3, 8–9). In retaliation, on the morning of

February 1, 2022, TTCC staff members (including Captain Mitchell, Case Manager Smith, and

Case Manager Mathews) told Plaintiff he was being transferred to WCFA. (Id. at 3, 9). Without

being aggressive, Plaintiff refused this transfer because of a prior conflict with gangs at WCFA.

(Id.). The staff members sprayed Plaintiff with mace, aggressively pushed him, punched him in

the ribs, and dragged him to the bus to be taken to WCFA. (Id.). Plaintiff was in serious pain from

injuries to his arm, head, and neck. (Id.). Contract Monitor Brun appeared on the scene, failed to

obtain medical treatment for Plaintiff, and approved the transfer to WCFA. (Id.). Plaintiff also

alleges that Assistant Warden Norman “showed deliberate indifference” at this time. (Id. at 9).

3. Events at WCFA

Plaintiff arrived at WCFA on the afternoon of February 1, 2022. (Id.). At intake, he told

Property Room Officer Robinson and Officer Scott he should not be on the main compound. (Id.).

Plaintiff remained off the main compound for one month, and during that time, he told several

other staff members it was dangerous for him to be at WCFA, including Unit Manager Neal and

Case Manager Sain. (Id.).

On March 2, 2022, Plaintiff was told to go to the main compound or be taken to segregation.

(Id.). Plaintiff refused, and Captain Vick Huderson and Case Manager Edward threatened to spray

Plaintiff with mace if he did not go. (Id. at 9, 20). Plaintiff told Edwards to take him to segregation.

(Id. at 9–10). On the way to segregation, Unit Manager Neal convinced Plaintiff to go to the main

compound, but Plaintiff changed his mind when Officer Hernandez threatened Plaintiff and

Plaintiff noticed a group of inmates waiting for Plaintiff in the main compound. (Id. at 10, 20).

Plaintiff alleges that Edward brought those inmates “to get [Plaintiff].” (Id. at 10). Neal then sent

Plaintiff to segregation. (Id.). That night, Neal brought Plaintiff “seg[regation] rule sheets and

small pieces of property allowed in seg[regation].” (Id.). Over the remainder of March, Plaintiff

submitted numerous grievances or oral complaints to Chief Assistant Williams, Contract Monitor

Hill, and Captain Williams, and they did not provide a “professional response.” (Id. at 21).

From April 1 to 12, 2022, Captain Huderson, Officer Rowe,2 and Lt. Warren forced

Plaintiff to share a cell with other inmates by threatening Plaintiff with mace, and Plaintiff had

conflicts with these cellmates. (Id. at 10, 21). On April 12, Warren threatened to mace Plaintiff if

he did not let a gang-affiliated inmate into his cell. (Id. at 10). Plaintiff, who had PTSD from prior

mace incidents and had “been off his meds for months,” had a panic attack and asked Rowe for

mental health services. (Id. at 10, 21). Plaintiff told Rowe he was going to “blank out on PTSD.”

(Id. at 10). Rowe laughed, mocked Plaintiff, and said that mental health would not come unless

Plaintiff was going to harm himself. (Id.). To get help, Plaintiff said he was going to harm himself.

(Id.). An hour after Plaintiff requested treatment, Rowe called mental health services. (Id. at 21).

Plaintiff was in seclusion on “mental health watch” from April 12 to July 28, 2022. (Id. at

10). At intake, Plaintiff heard mental health Nurse Craig say he was going to put Plaintiff on

2 Plaintiff alleges that the same Officer Rowe who worked at TTCC also worked at WCFA. (See Doc. No.

16 at 10).

medication to make Plaintiff crazy, so Plaintiff did not allow Craig to prescribe him medication.

(Id. at 11, 21). Dr. Kirk also allegedly showed less concern for Plaintiff’s mental health than

inmates of other races. (Id.). During this time, Plaintiff allegedly experienced a wide range of

unconstitutional conduct, including “hate crime” by property room Officers Robinson and Lewis,

threats from Officers Cleaves, Williams and Mask, and food and mail tampering. (Id.).

On June 15, 2022, Lt. Morris, Lt. Warren, and Captain Huderson took Plaintiff’s legal

materials while he was being moved to segregation. (Id. at 11). Warren claimed that she put these

materials in her office, but Plaintiff has not seen them since that day. (Id.). Plaintiff’s new cell was

unsanitary, with “vomit on [the] toilet” and a wet floor that smelled like urine. (Id.). This caused

Plaintiff’s feet to burn and swell for weeks. (Id.). Plaintiff filled out a sick call request, but he was

not taken to medical. (Id.). On June 27, 2022, Plaintiff was taken back to intake. (Id.).

On July 6, 2022, after speaking to property room Officer Robinson, Captain Huderson told

Plaintiff to “cuff up” and go to his old segregation cell to see a doctor. (Id.). Plaintiff refused

because the doctor had previously informed Plaintiff that he would be back to see Plaintiff. (Id.).

Plaintiff then agreed to go if Huderson called the doctor to confirm. (Id.). Huderson got angry,

knocked a food tray out of Plaintiff’s hand, pushed Plaintiff into the middle of the cell, and sprayed

Plaintiff’s “private area” with mace. (Id.). Huderson then forced Plaintiff back to his old

segregation cell, leaving Plaintiff’s skin burning for hours. (Id.). Medical checked on Plaintiff and

said that Huderson was supposed to move another inmate, not Plaintiff. (Id. at 12). The next day,

Huderson threatened to mace Plaintiff if Plaintiff did not allow Huderson to “take photos of

[Plaintiff] with [Huderson’s] personal phone.” (Id.). Due to Plaintiff’s PTSD, he agreed. (Id.).

From July 8 to 16, 2022, Plaintiff was “consistently threaten[ed]” by inmates. (Id. at 21).

Based on these threats, Plaintiff sent mental health services a list of inmates for separation. (Id.).

On July 16, 2022, Officer Harris gave an inmate Plaintiff’s list of names for separation, resulting

in numerous additional threats to Plaintiff. (Id.).

On July 18, 2022, Plaintiff was forced to take a drug test while Officers J. Jones and Harris

waited because Plaintiff was observed gagging and having mucus attacks when he was served

food. (Id. at 22). Plaintiff’s reaction was due to allergies, as he does not do drugs. (Id. at 12).

On July 28, 2022, Plaintiff filed a grievance. (Id. at 22). Two days later, in retaliation for

the grievance, Officer Ammus made threats regarding Plaintiff to other inmates, gave Plaintiff a

cold meal tray, and did not allow Plaintiff to go outside for recreation. (Id. at 12, 22).

At some point in July 2022, Officers Rowe and Love lied about Plaintiff to bring him harm.

(Id. at 12, 21–22). Rowe also threatened Plaintiff, while Love helped steal Plaintiff’s commissary

and gave Plaintiff a tray with meat juice on it. (Id. at 12, 22). Officer Wilson refused to give

Plaintiff breakfast twice and threatened him at the showers. (Id. at 12). And Officer J. Jones

allowed another inmate to switch breakfast trays with Plaintiff. (Id.).

On August 8, 2022, Plaintiff refused a meal tray, Officer J. Jones refused to replace it, and

Plaintiff said he would report J. Jones. (Id.). In retaliation, J. Jones’ cousin (another Officer Jones)

ordered another officer to give Plaintiff a half full meal tray with “sour odors.” (Id.).

On August 30, 2022, Officer Jones deprived Plaintiff of recreation and threatened him “in

a slick manner” by repeatedly telling Plaintiff not to complain. (Id. at 22).

At some point in August 2022, Officers Love, Rowe, Harris, and J. Jones blocked Plaintiff

from using the phone when he had a scheduled family call following his mother’s release from the

hospital and a death in the family. (Id. at 12, 22). Plaintiff, instead, only briefly spoke with his

mother and nephew. (Id. at 22).

In September 2022, Plaintiff submitted several sick call requests due to not receiving a bed

mat, and he gave a grievance to a night shift officer. (Id. at 12–13, 22). Plaintiff did not receive a

response. (Id. at 13, 22).

On September 12, 2022, Lt. Warren told another inmate that Plaintiff is a “b*t*h a**,” and

that she would “roll [Plaintiff] up out of here” four days later. (Id. at 22).

At the time Plaintiff filed the Complaint in September 2022, he did not have a mat for his

bed, his personal property, or his legal materials. (Id. at 12–13).

4. This Lawsuit

Plaintiff filed this case in January 2022. On two occasions, this case was dismissed without

prejudice for Plaintiff’s failure to resolve the filing fee and follow the Court’s Orders, but both

times, the case was reopened because it appeared that Plaintiff’s failure to act may have been

outside of his control. The Court eventually received the operative Complaint on September 23,

2022. Plaintiff requests monetary damages and transfer to protective custody at a federal prison.

(Doc. No. 13 at 5; Doc. No. 16 at 24–25).

B. Standard of Review

To determine if the Complaint states a claim upon which relief may be granted, the Court

applies the same standard as under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Hill v.

Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). The Court therefore accepts “all well-pleaded

allegations in the complaint as true, [and] ‘consider[s] the factual allegations in [the] complaint to

determine if they plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380,

383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). An assumption of truth does not extend to

legal conclusions or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556

U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

C. Analysis

“There are two elements to a § 1983 claim. First, a plaintiff must allege that a defendant

acted under color of state law. Second, a plaintiff must allege that the defendant’s conduct deprived

the plaintiff of rights secured under federal law.” Handy-Clay v. City of Memphis, Tenn., 695 F.3d

531, 539 (6th Cir. 2012) (citations omitted).

1. Allegations Untied to a Named Defendant

As an initial matter, Plaintiff fails to state a claim based on allegations that are not

connected to a named Defendant. This is a natural consequence of the language of Section 1983,

which requires “an actual connection or link between the actions of the Defendants and the

deprivation alleged to have been suffered by Plaintiff.” Rood v. Sec’y of CDCR, No. 1:22-cv-

00449, 2022 WL 2160662, at *3 (E.D. Cal. June 15, 2022) (citing Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 691, 695 (1978)). Some allegations mentioned above that are not linked to a named

Defendant include: the confiscation of Plaintiff’s property at TTCC in May 2021; the conditions

of confinement while Plaintiff was on mental health watch at WCFA from April to July 2022; the

conditions of confinement during Plaintiff’s twelve-day stay in segregation at WCFA in June 2022;

and the conditions of confinement at WCFA when Plaintiff filed the Complaint in September 2022,

including his lack of a sleeping mat, personal property, and legal materials. Accordingly, Plaintiff

may not pursue claims based on these allegations at this time.

2. Improper Parties

Plaintiff names TDOC, TTCC, and WCFA as Defendants, but they are not proper parties

to this case. “The TDOC is not a “person” within the meaning of [Section] 1983, and is therefore

not a proper defendant.” Hix v. Tenn. Dep’t of Corr., 196 F. App’x 350, 355 (6th Cir. 2006)

(quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989)). Similarly, TTCC and WCFA

are buildings, and as such, they are not persons or legal entities subject to suit under Section 1983.

See McIntosh v. Camp Brighton, No. 14-CV-11327, 2014 WL 1584173, at *2 (E.D. Mich. Apr.

21, 2014) (collecting cases establishing that a prison facility “is not a ‘person’ or legal entity

subject to suit under 42 U.S.C. § 1983”). These three Defendants will be dismissed as parties.

The Court notes, however, that Plaintiff also brings this case against CoreCivic—the

private entity contracted to manage both TTCC and WCFA3—and CoreCivic is a proper party to

a Section 1983 case. See Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Plaintiff’s

claims against CoreCivic will be discussed below, following the analysis of his claims against the

individual defendants.

3. Insufficient Allegations of Wrongdoing

Plaintiff lists several individuals as Defendants while providing no factual explanation of

how that individual personally violated his rights. That is, after naming them as Defendants,

Plaintiff does not reference eleven individuals in the body of the Complaint: TTCC Defendant

Steinburg and WCFA Defendants West, Hill (the Mail Room Officer), Kristy, McVey, Wilkes,

Brown, Steven, Wade, Powell, and Harris (the Commissary Officer). Even under the liberal

standards for reviewing pro se filings, that is insufficient to state a claim. See Gilmore v. Corr.

Corp. of. Am., 92 F. App’x 188, 190 (6th Cir. 2004) (citing Flagg Bros. v. Brooks, 436 U.S. 149,

155–57, (1978)) (“Merely listing names in the caption of the complaint and alleging constitutional

violations in the body of the complaint is not enough to sustain recovery under [Section] 1983.”).

3 The Court takes judicial notice of this fact. See Trousdale Turner Correctional Center, TENNESSEE

DEPARTMENT OF CORRECTION, https://www.tn.gov/correction/sp/state-prison-list/trousdale-turner-

correctional-center; Whiteville Correctional Facility, TENNESSEE DEPARTMENT OF CORRECTION

https://www.tn.gov/correction/sp/state-prison-list/whiteville-correctional-facility; Fed. R. Evid. 201(b)

(allowing judicial notice of facts that “can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned”).

Plaintiff also makes allegations against several Defendants that do not plausibly reflect a

violation of his constitutional rights, either because they are legal conclusions or undeveloped

allegations of general harassment. This includes: the June 2021 attempted cell transfer at TTCC

by Defendants Hill, Hawkins, and Dicky; TTCC Defendant Hunt’s undated and unspecified

involvement in Plaintiff’s “forced RCA status” and commissary restriction (Doc. No. 16 at 20);

informing WCFA Defendant Scott that Plaintiff should not be on the main compound when he

arrived at WCFA on February 1, 2022; unspecified threats by WCFA Defendant Hernandez during

Plaintiff’s cell transfer in March 2022; acts by named Defendants while Plaintiff was on mental

health watch at WCFA from April to July 2022, including the “hate crime[s]” by Defendants

Robinson and Lewis and unspecified threats by Defendants Cleaves, Officer Williams, Mask, and

Robinson; WCFA Defendant Robinson’s July 2022 conversation with another WCFA Defendant

prior to a use of force against Plaintiff; the actions of WCFA Defendants Love and Rowe in July

2022, including lying about Plaintiff, threatening him, stealing his commissary, and giving him a

tray with meat juice; WCFA Defendant J. Jones allowing another inmate to switch food trays with

Plaintiff in July 2022; and WCFA Defendant Wilson threatening Plaintiff at the showers in July

2022. Such purely conclusory assertions of legal liability or general allegations of harassment are

insufficient to state a claim for relief. See Gilmore, 92 F. App’x at 190 (citing Scheid v. Fanny

Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)) (“A complaint must contain

allegations respecting all the elements to sustain a recovery under some viable legal theory.”);

Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (citing Ivey v. Wilson, 832 F.2d

950, 954–55 (6th Cir. 1987)) (“[H]arassment and verbal abuse, such as Johnson has described,4 do

4 The non-actionable allegations of harassment in Johnson included a prison official continuously banging

and kicking on a prisoner’s cell door, “throw[ing] his food trays through the bottom slot of his cell door so

hard that the top flies off, mak[ing] aggravating remarks to him, mak[ing] insulting remarks about his hair

being too long, growl[ing] and snarl[ing] through his window, smear[ing] his window to prevent him from

not constitute the type of infliction of pain that the Eighth Amendment prohibits.”). Plaintiff makes

no other allegations of wrongdoing against nine of these Defendants (TTCC Defendants Dicky

and Hunt, and WCFA Defendants Scott, Hernandez, Lewis, Cleaves, Officer Williams, Mask, and

Robinson). These nine Defendants will be dismissed as parties.

Plaintiff also brings this case against six individuals whose only alleged participation is

ignoring alleged wrongdoing by subordinates (TTCC Defendants, Kaizer, and Norman) or failing

to properly respond to complaints and grievances (TTCC Defendant Lopez and WCFA Defendants

Captain Williams, Chief Assistant Williams, Contract Monitor Hill). But “[t]he ‘denial of

administrative grievances or the failure to act’ by prison officials does not subject supervisors to

liability under § 1983.” See Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (quoting Shehee

v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Similarly, “claims premised on the mishandling of

[] grievances” are subject to dismissal because prisoners “have no constitutional right to an

effective prison grievance procedure.” Hursey v. Anderson, No. 16-1146, 2017 WL 3528206, at

*2 (6th Cir. Mar. 31, 2017) (citation omitted). Accordingly, Plaintiff fails to state a claim against

these six Defendants.

4. Events at TTCC

a. May 2021 Transfer to the Main Compound

Plaintiff alleges that, on May 21, 2021, several TTCC Defendants were involved in an

effort to transfer Plaintiff to the main compound. Prior to this transfer, Plaintiff had informed

prison officials that his life would be in danger on the main compound because his identity had

been mistaken for a gang-affiliated inmate who had cooperated with law enforcement and “had a

hit on him for a lot of money.” And when Plaintiff was placed in a cell on the main compound,

seeing out of it, behave[ing] in a racially prejudicial manner toward him and jerk[ing] and pull[ing] him

unnecessarily hard when escorting him from his cell.” 357 F.3d at 545.

twenty-five gang members came to his cell intending to kill him. A non-Defendant officer assisted

Plaintiff, and Plaintiff was eventually allowed to return to his cell away from the main compound.

These allegations state a non-frivolous claim for relief. The Eighth Amendment imposes a

duty on prison officials “to protect prisoners from violence at the hands of other prisoners.”

Westmoreland v. Butler Cnty., Kentucky, 29 F.4th 721, 726 (6th Cir. 2022) (quoting Farmer v.

Brennan, 511 U.S. 825, 833 (1994))). To state a claim for a violation of this duty, a plaintiff must

show that, “‘objectively,’ he was ‘incarcerated under conditions posing a substantial risk of serious

harm.’” Reedy v. West, 988 F.3d 907, 912 (6th Cir. 2021) (quoting Farmer, 511 U.S. at 834). The

plaintiff must also show that, subjectively, “the official acted with ‘deliberate indifference’ to

inmate safety, meaning the official was ‘subjectively aware of the risk’ and ‘fail[ed] to take

reasonable measures to abate it.’” Id. (quoting Farmer, 511 U.S. at 829, 834, 847).

Accepting the factual allegations as true, Plaintiff may proceed with a failure-to-protect

claim arising from this incident against Case Manager Jackson, Lt. Hill, Lt. Murray, Officer Rowe,

and Officer Moore. Plaintiff satisfies the objective component by alleging that inmates on the main

compound mistook him for an informant with a bounty on his head. And Plaintiff satisfies the

subjective component against the staff members who directed (Jackson) or carried out (Hill,

Murray, Rowe, and Moore) the transfer after Plaintiff explained the substantial risk of serious harm

facing him on the main compound—a risk allegedly manifest by a group of twenty-five inmates

congregating outside his cell to kill him, before a non-Defendant officer intervened and Plaintiff

eventually returned to his prior cell.

b. May 2021 Placement in Segregation

Plaintiff alleges that, on May 28, 2021, Case Manager Jackson placed Plaintiff in

segregation for an unspecified period of time after he refused another inmate being placed in his

cell. Plaintiff also alleges that Jackson retaliated against Plaintiff by not allowing him to bring his

television or commissary items to segregation.

These allegations fail to state a claim. A prisoner does not have “a constitutional right to

choose his cellmates.” McCain v. Jackson, No. 1:19-CV-234, 2019 WL 2075959, at *5 (S.D. Ohio

May 10, 2019), report and recommendation adopted, 2019 WL 6485692 (S.D. Ohio Dec. 3, 2019)

(citations omitted). Plaintiff, therefore, fails to state a claim based on the placement (or attempted

placement) of another inmate in his cell. And because refusing a cellmate is not a constitutionally

protected activity, he also fails to state a claim against Jackson for allegedly retaliating against him

afterwards. See Hill, 630 F.3d at 472 (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394–95 (6th

Cir. 1999)) (“The first element that [a prisoner] must establish for his retaliation claim is that he

was engaged in conduct protected by the First Amendment.”).

Finally, to the extent that Plaintiff intends to bring a due process claim based on his transfer

to segregation, he does not satisfy the threshold element of establishing a constitutionally protected

liberty interest. See Pickelhaupt v. Jackson, 364 F. App’x 221, 224 (6th Cir. 2010) (citing

Wilkinson v. Austin, 545 U.S. 209, 224 (2005)) (“[T]he question of what process is due is relevant

only if the inmate establishes a constitutionally protected interest.”). Prisoners have a liberty

interest in avoiding confinement that “imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Wilkinson, 545 U.S. at 223 (quoting Sandin v.

Conner, 515 U.S. 472, 484 (1995)). Courts consider “the nature of the more-restrictive

confinement and its duration in determining whether it imposes an atypical and significant

hardship.” Harden-Bey v. Rutter, 524 F.3d 789, 793 (6th Cir. 2008) (internal quotation marks

omitted) (collecting cases). Here, Plaintiff does not describe the nature of the conditions in

segregation, or the duration of his stay there on this occasion. Accordingly, Plaintiff fails to state

a due process claim on this basis. See Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010)

(internal citations and quotation marks omitted) (“[A]dministrative segregation alone does not

involve an atypical and significant hardship implicating a protected liberty interest.”).

c. June 2021 Fabricated Write-Ups and Taking of Commissary

Plaintiff alleges that, in June 2021, Lt. Hill and Lt. Hawkins fabricated write-ups that

prevented Plaintiff from being placed on protective custody and forced him to remain at TTCC,

and Hill and Officer Ottis took Plaintiff’s commissary items, both in retaliation for Plaintiff filing

grievances.

These allegations fail to state a claim. A bare allegation of fabricated write-ups does not

support a stand-alone claim under Section 1983. See Dixon v. Brown, 38 F.3d 379, 379 (8th Cir.

1994) (“Although the filing of a false disciplinary charge is not itself actionable under § 1983, the

filing of a disciplinary charge becomes actionable if done in retaliation for the inmate’s filing of a

grievance.”). The alleged taking of Plaintiff’s commissary items was an “unauthorized, intentional

deprivation of [his] property,” which “does not give rise to a due process claim if the state provides

an adequate post-deprivation remedy.” See Weatherspoon v. Woods, No. 16-1277, 2017 WL

3923335, at *3 (6th Cir. Feb. 24, 2017) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt

v. Taylor, 451 U.S. 527, 541 (1981)). Tennessee provides such a remedy, McMillan v. Fielding,

136 F. App’x 818, 820 (6th Cir. 2005) (citing Brooks v. Dutton, 751 F.2d 197, 199 (6th Cir. 1985)),

and Plaintiff does not allege that he attempted this remedy or that the remedy was inadequate.

Finally, Plaintiff’s allegation of a retaliatory motive is not supported by any direct or circumstantial

facts, such as “disparate treatment of similarly situated individuals or [a close] temporal proximity

between” his filing of unspecified grievances and the alleged write-ups and taking of commissary.

See Hill, 630 F.3d at 475–76 (citing Thaddeus-X, 175 F.3d at 394). Such “conclusory allegations

of retaliatory motive unsupported by material facts [are not] sufficient to state a . . . claim.” See

Hill, 630 F.3d at 475 (quoting Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005)).

d. July 2021 Use of Force

Plaintiff alleges that, after he refused a cellmate on July 26, 2021, Lt. Hill choked Plaintiff,

slammed Plaintiff on the floor, and threatened to kill Plaintiff if he filed another grievance

concerning Hill. As a result, Plaintiff allegedly suffered neck swelling, back pain, head pain, and

difficulty swallowing.

These allegations state two non-frivolous claims against Lt. Hill. First, the Eighth

Amendment establishes the right for prisoners to be free from excessive force by prison officials.

Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013) (citing Whitley v. Albers, 475 U.S. 312,

318–22 (1986)). This claim has objective and subjective components. Cordell v. McKinney, 759

F.3d 573, 580 (6th Cir. 2014) (citing Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013)). For

the objective component, a plaintiff must demonstrate that a prison official inflicted pain that was

“sufficiently serious” based on “contemporary standards of decency.” Id. at 585 (quoting Williams

v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)). The subjective component requires the Court to

consider whether the alleged force applied by a prison official was “in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 580 (quoting

Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Accepting Plaintiff’s allegations as true, Plaintiff

may proceed with an excessive force claim against Hill based on this incident.

Second, these allegations also support a retaliation claim against Lt. Hill. “[R]etaliation for

the exercise of constitutional rights is itself a violation of the Constitution.” Thaddeus-X, 175 F.3d

at 394 (footnote omitted). To establish a retaliation claim, “a prisoner must prove 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, 630 F.3d at 472

(quoting Thaddeus-X, 175 F.3d at 394, 398). Here, for the purpose of initial review, (1) Plaintiff’s

filing of one or more grievances against Hill in the past was protected conduct, see id.; (2) Hill’s

use of force and threat to kill Plaintiff could deter a reasonable person from filing a grievance; and

(3) Hill’s alleged threat was explicitly tied to Plaintiff’s protected conduct. Accordingly, Plaintiff

may proceed with a retaliation claim against Hill based on this incident.

e. August 2021 Use of Force

Plaintiff alleges that, after he argued with an inmate forced into his cell by Lt. Hill on

August 13, 2021, Hill choked and slammed Plaintiff headfirst on the floor while Plaintiff was in

handcuffs. Contract Monitor Brun and Captain Beaver allegedly saw this assault and did nothing,

and then refused to obtain medical care for Plaintiff.

Accepting these allegations as true, they state another excessive force claim against Lt.

Hill. See Cordell, 759 F.3d at 583 (citing United States v. Graham, 275 F.3d 490, 511 n.11 (6th

Cir. 2001)) (noting that force used on a handcuffed or otherwise incapacitated individual is less

likely to be in good faith).

These allegations also state two non-frivolous claims against Contract Monitor Brun and

Captain Beaver. First, the Eighth Amendment’s requirement that prison officials “take reasonable

measures to guarantee the safety of the inmates” means that an official may be liable for failing to

prevent another official from harming an inmate. Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001)

(quoting Farmer, 511 U.S. at 832). To state a claim under this theory of relief, a prisoner must

show that the official “acted with ‘deliberate indifference’ to a substantial risk that [another prison

official] would cause [the prisoner] serious harm.” Id. (collecting cases). Accepting Plaintiff’s

allegations as true, Plaintiff may pursue claims against Brun and Beaver for failing to protect him

from Lt. Hill’s alleged use of force in August 2021.

Second, the Eighth Amendment is also “violated when prison doctors or officials are

deliberately indifferent to [a] prisoner’s serious medical needs.” Richmond v. Huq, 885 F.3d 928,

937 (6th Cir. 2018) (quoting Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001)). “A

constitutional claim for deliberate indifference contains both an objective and a subjective

component. The objective component requires a plaintiff to show the existence of a ‘sufficiently

serious’ medical need.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)

(quoting Farmer, 511 U.S. at 834). “The subjective component, in contrast, requires a plaintiff to

‘allege 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. (quoting Comstock, 273 F.3d at 703). At this stage in the

proceedings, it is reasonable to infer that Plaintiff’s medical needs following the use of force by

Lt. Hill were sufficiently serious (Plaintiff alleges injuries to his abdominal area, head, neck, back,

elbows, and knees). And by alleging that Contract Monitor Brun and Captain Beaver refused

Plaintiff medical care despite observing him in obvious distress, it is also reasonable to infer that

these Defendants knew of and disregarded Plaintiff’s medical needs. Accordingly, Plaintiff may

pursue a claim of deliberate indifference to serious medical needs against Brun and Beaver arising

from Hill’s alleged use of force in August 2021.

f. February 2022 Use of Force and Transfer to WCFA

Plaintiff alleges that, on February 1, 2022, he was transferred to WCFA in retaliation for

filing this case in January 2022. The TTCC Defendants who informed Plaintiff of the transfer were

Captain Mitchell, Case Manager Smith, and Case Manager Mathews. Plaintiff attempted to refuse

this transfer because of prior conflicts with gang-affiliated inmates at WCFA. In response, the

TTCC Defendants sprayed Plaintiff with mace, aggressively pushed him, punched him in the ribs,

and dragged him to the bus to be taken to WCFA. Contract Monitor Brun appeared on the scene,

failed to obtain medical treatment for Plaintiff, and approved the transfer to WCFA.

Plaintiff states three claims based on these allegations. First, he states a retaliation claim

against the Defendants who initiated or approved the transfer. To restate, a retaliation claim

requires that (1) a prisoner engaged in protected conduct, (2) a defendant took a sufficiently

adverse action to deter that conduct, and (3) the adverse action was motivated at least in part by

the protected conduct. See Hill, 630 F.3d at 472. Here, for the purpose of initial review: (1) filing

this lawsuit was protected conduct, see Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 208 (6th

Cir. 2010) (citing Thaddeus-X, 175 F.3d at 396); (2) Plaintiff’s transfer to WCFA was an adverse

action because it would plausibly result in foreseeable, negative consequences based on Plaintiff’s

alleged prior conflicts with gang members at WCFA, see Hill, 630 F.3d at 474 (citing Siggers-El

v. Barlow, 412 F.3d 693, 701–02 (6th Cir. 2005)) (“[A] prison transfer . . . can be an adverse action

if that transfer would result in foreseeable, negative consequences to the particular prisoner.”); and

(3) there was a plausible retaliatory motive and close temporal proximity between the filing of this

lawsuit and Plaintiff’s transfer. See Maben v. Thelen, 887 F.3d 252, 268 (6th Cir. 2018) (quoting

King v. Zamiara, 680 F.3d 686, 695–96 (6th Cir. 2012)) (“This Court has ‘previously considered

the temporal proximity between protected conduct and retaliatory acts as creating an inference of

retaliatory motive.’”). Plaintiff, therefore, may pursue a retaliation claim against Captain Mitchell,

Case Manager Smith, Case Manager Mathews, and Contract Monitor Brun based on this incident.

Second, and again accepting Plaintiff’s allegations as true, Plaintiff may proceed with an

excessive force claim against the Defendants who maced, pushed, punched, and dragged Plaintiff

after he refused the transfer to WCFA: Captain Mitchell, Case Manager Smith, and Case Manager

Mathews.

Third, Plaintiff also states a claim of deliberate indifference to serious medical needs

against Contract Monitor Brun for his alleged denial of medical treatment following the use of

force. Plaintiff alleges that this force resulted in serious pain and injuries to his arm, head, and

neck. For the purpose of initial review, it is reasonable to infer that Plaintiff’s medical needs at this

time were sufficiently serious, and that Brun knew of and disregarded Plaintiff’s needs by

observing Plaintiff’s condition and denying him treatment.

5. Events at WCFA

a. March 2022 Placement in Segregation

Plaintiff alleges that, on March 2, 2022, Captain Huderson and Case Manager Edward

threatened to mace him if he did not go to the main compound or segregation. Plaintiff told Edward

to take him to segregation, but on the way, Unit Manager Neal convinced Plaintiff to go to the

main compound. Plaintiff, however, changed his mind when Officer Hernandez threatened

Plaintiff and Plaintiff noticed a group of inmates waiting for Plaintiff in the main compound—

inmates allegedly organized by Edward “to get [Plaintiff].” Neal then sent Plaintiff to segregation.

Plaintiff fails to state a claim based on these allegations. Plaintiff does not allege that any

WCFA staff members used force against him during this incident, or that the staff’s alleged threats

were made in retaliation for Plaintiff engaging in protected conduct. As alleged, therefore, these

threats do not rise to the level of a constitutional violation. See Johnson, 357 F.3d at 546.

Additionally, Plaintiff’s allegation that Case Manager Edward “brought those guys from J-Unit to

get [him]” (Doc. No. 16 at 10) is “pure speculation” unsupported by any facts or details, so it is

not entitled to a presumption of truth. See Hill, 630 F.3d at 473 (disregarding prisoner’s factually

frivolous allegation that staff would “have him assaulted and possibly killed”). And Unit Manager

Neal allegedly sending Plaintiff to segregation, without more, fails to state a claim. See Joseph,

410 F. App’x at 868 (“[A]dministrative segregation alone does not involve an atypical and

significant hardship implicating a protected liberty interest.”).

b. April 2022 Cell Sharing and Request for Mental Health Services

Plaintiff alleges that, in April 2022, Captain Huderson, Officer Rowe, and Lt. Warren

forced him to share cells with other inmates, including by threatening Plaintiff with mace. When

Warren did this on April 12, Plaintiff had been “off his meds for months,” and his PTSD caused

him to have a panic attack and ask Rowe for mental health services. Plaintiff told Rowe he was

going to “blank out on PTSD.” Rowe laughed, mocked Plaintiff, and said that mental health would

not come unless Plaintiff was going to hurt himself. Plaintiff then said he was going to harm

himself, and Rowe called for mental health services. Plaintiff alleges that there was a one-hour

delay between requesting and receiving mental health treatment.

The allegation that Plaintiff was forced to share a cell, on its own, fails to state a claim

because prisoners do not have “a constitutional right to choose [their] cellmates.” See McCain,

2019 WL 2075959, at *5. And even assuming, without deciding, that being housed with these

cellmates put Plaintiff at a substantial risk of serious harm, Plaintiff does not make allegations

from which the Court can reasonably infer that Huderson, Rowe, or Warren knew of and

disregarded that risk, as required to state a failure-to-protect claim. See Reedy, 988 F.3d at 912.

Liberally construing the Complaint in Plaintiff’s favor, however, he may proceed with a

claim against Officer Rowe for allegedly refusing to obtain mental health treatment in a timely

manner. A prisoner’s Eighth Amendment “right to be free from deliberate indifference to medical

needs extends to [his] psychiatric needs.” Richmond, 885 F.3d at 937 (citing Comstock, 273 F.3d

at 702). As discussed above, this claim has an objective component that requires prisoners to

establish a sufficiently serious medical need, and a subjective component that requires them to

establish a prison official knowingly disregarded that need. See Dominguez, 555 F.3d at 550.

For the purpose of initial review, the Court construes Plaintiff’s allegation that had “been

off his meds for months” at the time of this incident to mean that a physician had diagnosed

Plaintiff with a psychiatric need mandating treatment. That is sufficient to satisfy the objective

component at this time. See Gunther v. Castineta, 561 F. App’x 497, 502 (6th Cir. 2014)

(“[Plaintiff’s] mental illness qualifies as a ‘serious medical need’—it was ‘diagnosed by a

physician’ as, presumably, ‘mandating treatment,’ and was treated accordingly at . . . the previous

facility in which [Plaintiff] was incarcerated.”). And although Officer Rowe eventually called for

mental health services, there was an alleged one-hour delay in which Rowe delayed treatment for

non-medical reasons by laughing at and mocking Plaintiff, despite Plaintiff telling Rowe that he

was going to “blank out on PTSD.” At this stage in the proceedings, that is sufficient to satisfy the

subjective component. See Darrah v. Krisher, 865 F.3d 361, 372 (6th Cir. 2017) (“When prison

officials are aware of a prisoner’s obvious and serious need for medical treatment and delay

medical treatment of that condition for non-medical reasons, their conduct in causing the delay

creates [a] constitutional infirmity.”); id. at 368–69 (citations omitted) (“Even relatively short

periods of delay or neglect have sufficed.”). Accordingly, Plaintiff states a claim for deliberate

indifference to serious psychiatric needs against Rowe for delaying treatment following Plaintiff’s

alleged panic attack in April 2022.

c. April 2022 Placement on Mental Health Watch

Plaintiff alleges that, from April 12 to July 28, 2022, he was in seclusion on mental health

watch. When he entered mental health watch, Plaintiff allegedly heard Nurse Craig say he was

going to put Plaintiff on medication to make Plaintiff crazy, and Dr. Kirk showed less concern for

Plaintiff’s mental health than inmates of other races.

These allegations fail to state a claim. As for Nurse Craig, the Sixth Circuit has recognized

that state prisoners have a constitutionally protected liberty interest in refusing medical treatment,

subject to regulation by prison officials that is reasonably related to the prison’s interests in safety

and security. See Kramer v. Wilkinson, 302 F. App’x 396, 400 (6th Cir. 2008). But Plaintiff does

not allege that Craig actually prescribed him a particular medication, much less allege that Craig

forced Plaintiff to take it. As alleged, therefore, Craig’s overheard comment about drugs amounts

to a single aggravating remark that does not rise to the level of a constitutional violation. See

Johnson, 357 F.3d at 546. And Dr. Kirk’s alleged racially discriminatory lack of concern is not

supported by any factual allegations, so Plaintiff fails to state a claim on this basis as well. See

Bishawi v. Ne. Ohio Corr. Ctr., 628 F. App’x 339, 345 (6th Cir. 2014) (citing Harden-Bey, 524

F.3d at 796) (“Conclusory equal protection claims, without specific factual allegations, are

inadequate to state a civil rights claim.”).

d. June 2022 Taking of Legal Materials

Plaintiff alleges that, while being taken to a segregation cell in June 2022, his legal

materials were taken by Lt. Morris, Lt. Warren, and Captain Huderson.

This allegation fails to state a claim, for two reasons. First, to the extent that Plaintiff is

attempting to bring a claim based on the “unauthorized, intentional deprivation of [his] property,”

such an act “does not give rise to a due process claim if the state provides an adequate post-

deprivation remedy.” See Weatherspoon, 2017 WL 3923335, at *3. And Tennessee “provide[s] an

adequate post-deprivation remedy for takings of property.” See McMillan, 136 F. App’x at 820.

Because Plaintiff does not allege that he attempted this remedy or that the remedy was inadequate,

he fails to state a property-deprivation claim.

Second, to the extent that Plaintiff is attempting to bring a claim based on his right of access

to the courts, he has not pleaded sufficient facts. This claim requires Plaintiff to show “actual

prejudice to pending or contemplated litigation”—things like “having a case dismissed, being

unable to file a complaint, and missing a court-imposed deadline.” Harbin-Bey, 420 F.3d at 578

(citing Jackson v. Gill, 92 F. A’ppx 171, 173 (6th Cir. 2004)). But Plaintiff does not allege any

prejudice resulting from the taking of his materials, so he fails to state an access-to-courts claim.

e. July 2022 Use of Force

Plaintiff alleges that, after he did not comply with an instruction to “cuff up” and go to

segregation to see a doctor on July 6, 2022, Captain Huderson knocked a food tray out of Plaintiff’s

hand, pushed Plaintiff into the middle of the cell, and sprayed Plaintiff’s “private area” with mace.

These allegations, accepted as true for the purpose of initial review, state an excessive force

claim against Captain Huderson.

f. July 2022 Pictures of Plaintiff

Plaintiff alleges that, on July 7, 2022, Captain Huderson threatened to mace Plaintiff if

Plaintiff did not allow him to take pictures of Plaintiff with Huderson’s personal phone. Due to

Plaintiff’s PTSD, he agreed.

As presented, these allegations fail to state a claim. “A convicted prisoner maintains some

reasonable expectations of privacy while in prison, but those privacy rights are less than those

enjoyed by non-prisoners.” Crump v. Curtis, 50 F. App’x 217, 218 (6th Cir. 2002) (citations

omitted). For example, the Sixth Circuit has recognized that prisoners have a privacy right “against

the forced exposure of one’s body to strangers of the opposite sex.” Everson v. Mich. Dep’t of

Corr., 391 F.3d 737, 757 n.26 (6th Cir. 2004) (citing Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th

Cir. 1992); Kent v. Johnson, 821 F.2d 1220, 1226 (6th Cir. 1987)). But Plaintiff does not allege

that he was forced to expose his body to Captain Huderson, so as it stands, the Court cannot

reasonably infer that Huderson violated Plaintiff’s privacy rights through this incident.

g. July 2022 Disclosure of Separation List

Plaintiff alleges that he was threatened by several inmates from July 8 to 16, 2022, so he

gave mental health services a list of inmates for separation. On July 16, Officer Harris allegedly

gave this list to an unnamed inmate, resulting in numerous additional threats to Plaintiff.

Liberally construing the Complaint in Plaintiff’s favor, he may proceed with a claim

against Officer Harris based on this allegation. An Eighth Amendment failure-to-protect claim, to

restate, requires a prisoner to allege that his conditions of confinement posed an objectively

substantial risk of serious harm, and that a prison official subjectively knew of that risk and failed

to take reasonable measures to abate it. See Reedy, 988 F.3d at 912. For the purpose of initial

review, Plaintiff satisfies the objective component by alleging that he had been subject to numerous

threats from other inmates for 8 days leading up to July 16, 2022. And drawing all reasonable

inferences in Plaintiff’s favor, Harris’s knowing disregard of that risk may be established by

allegedly having access to Plaintiff’s separation list and giving it to another inmate without taking

any steps to protect Plaintiff. Plaintiff, therefore, states a non-frivolous failure-to-protect claim

against Officer Harris for giving Plaintiff’s separation list to another inmate in July 2022.

h. July 2022 Drug Test

Plaintiff alleges that, on July 18, 2022, he was drug tested because he was observed gagging

and having mucus attacks when he was served prison food. Plaintiff maintains that this reaction

was due to allergies, not drugs. Officer J. Jones and Officer Harris waited for the results of the test.

This allegation fails to state a claim. “[D]rug tests conducted under a prison policy of

randomized testing pass Fourth Amendment scrutiny because they are rationally related to

legitimate government interests. Non-random searches are constitutional if they are reasonable.”

Evans v. Vinson, 427 F. App’x 437, 443 (6th Cir. 2011) (citations omitted). This reasonableness

test requires courts to “consider the scope of the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish,

441 U.S. 520, 559 (1979) (collecting cases). This test also takes into account the “wide-ranging

deference” that should be accorded to prison administrators “in the adoption and execution of

policies and practices that in their judgment are needed to preserve internal order and discipline

and to maintain institutional security.” Id. at 547 (collecting cases).

Here, beyond generally alleging that he was required to take a drug test, Plaintiff does not

allege that the test was conducted in an intrusive manner. And the alleged justification for the test

is not necessarily unreasonable in this context, given the substantial deference due to prison

administrators in preserving internal order. Accordingly, Plaintiff fails to state a claim based on

the July 2022 drug test. See May v. Trancoso, 412 F. App’x 899, 904 (7th Cir. 2011) (citations

omitted) (“[C]ompelling a prisoner to urinate for a drug test while in private, with no outside

spectators, under the observation of just a single male guard is neither unreasonable nor without

penological justification.”).

i. July 2022 Retaliation

Plaintiff alleges that, on July 30, 2022, Officer Ammus retaliated against Plaintiff for filing

a grievance two days earlier by making threats against Plaintiff to other inmates, giving Plaintiff a

cold meal tray, and not allowing Plaintiff to go outside for recreation that day.

This allegation fails to state a claim. To state a retaliation claim, an inmate must allege 1)

constitutionally protected conduct, 2) an adverse action that is capable of deterring a reasonable

person from engaging in that conduct, and 3) causation—that the adverse act was motivated at

least in part by the protected conduct. See Hill, 630 F.3d at 472. Here, although filing a grievance

is protected conduct, see id., Plaintiff has not sufficiently alleged adverse action by Officer

Ammus: the allegation of unspecified threats to other inmates is not supported by sufficient factual

matter, see id. at 474 (evaluating whether alleged threat could be an adverse action based on the

specific content of the threat); and the allegation of a single cold meal and single missed recreation

period is not sufficiently adverse. See Maben, 887 F.3d at 266 (citing Thaddeus-X, 175 F.3d at

396) (“[S]ome adverse actions are so de minimis that they do not rise to the level of a

constitutionally cognizable injury.”). Additionally, despite the short period of time between

Plaintiff filing the grievance on July 28 and Ammus’s alleged actions on July 30, Plaintiff does

not allege that Ammus knew about or was named in the grievance. Plaintiff’s allegation of

causation is thus a “conclusory allegation[] of retaliatory motive unsupported by material facts”

that is not “sufficient to state a . . . claim.” See Hill, 630 F.3d at 475. Plaintiff, therefore, fails to

state a retaliation claim against Ammus based on this incident.

j. July 2022 Refusal of Breakfast Trays

Plaintiff alleges that, in July 2022, Officer Wilson refused to give him breakfast twice.

This allegation fails to state a claim. The Eighth Amendment imposes a duty on prison

officials to provide convicted inmates “humane conditions of confinement,” which includes

“adequate food.” Farmer, 511 U.S. at 832–33 (collecting cases). For food to be constitutionally

adequate, however, it need only be sufficient to “maintain normal health.” Cunningham v. Jones,

567 F.2d 653, 660 (6th Cir. 1977). And Plaintiff does not allege that being deprived of breakfast

on two occasions had an adverse effect on his health. See Richmond v. Settles, 450 F. App’x 448,

456 (6th Cir. 2011) (footnote omitted) (holding that the deprivation of seven meals over six days

did not violate the Eighth Amendment where the prisoner did “not allege that his health suffered

as a result of the meal deprivation”). Accordingly, Plaintiff fails to state a claim on this basis.

k. August 2022 Retaliation

Plaintiff alleges that, on August 8, 2022, Officer Jones ordered an officer to give Plaintiff

a half full meal tray with “sour odors” because Plaintiff threatened to report Jones’s cousin.

This allegation fails to state a claim. Even assuming that threatening to file a non-frivolous

grievance is protected conduct, see Pasley v. Conerly, 345 F. App’x 981, 984–85 (6th Cir. 2009)

(holding that a prisoner threatening to file a “legitimate” grievance was conduct “arguably

protected by the First Amendment”), the adverse action alleged here—giving Plaintiff a half full

meal tray that smelled sour on one occasion—was “so de minimis” that it did “not rise to the level

of a constitutionally cognizable injury.” See Maben, 887 F.3d at 266 (citing Thaddeus-X, 175 F.3d

at 396). Accordingly, Plaintiff fails to state a retaliation claim on this basis.

l. August 2022 Threats and Denial of Recreation

Plaintiff alleges that, on August 30, 2022, Officer Jones denied Plaintiff recreation time

and threatened him by repeatedly telling him not to complain.

This allegation fails to state a claim. As noted above, verbal harassment of this kind does

not rise to the level of a constitutional violation. See Johnson, 357 F.3d at 546. The same is true of

the denial of recreation time on a single day. See Hobson v. Greenwood, No. 3:11-cv-00443, 2011

WL 2181318, at *2 (M.D. Tenn. June 3, 2011) (“Even construing the complaint liberally, the

plaintiff’s allegations regarding the lack of recreation time on a single day do not rise to level of

an Eighth Amendment violation.”).

m. August 2022 Phone Access

Plaintiff alleges that, in August 2022, several WCFA Officers (Love, Rowe, Harris, and J.

Jones) blocked him from using the phone when he had a scheduled family call following his

mother’s release from the hospital and a death in the family.

This allegation fails to state a claim. The First Amendment provides prisoners a “general

right to communicate with family and friends,” including a right of “[r]easonable telephone access,

subject to reasonable regulations.” Dallas v. Chippewa Corr. Facility, No. 20-1941, 2022 WL

905857, at *3 (6th Cir. Mar. 1, 2022) (citing Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir.

1994)). Here, however, Plaintiff briefly communicated with his mother and nephew on the phone,

and he does not allege that he was prevented from communicating by other means, such as writing

letters. Accordingly, Plaintiff fails to state a claim based on the alleged deprivation of phone access

in August 2022. See id. (affirming dismissal of First Amendment phone-access claim where

prisoner did “not allege facts showing that existing policies prevented him from exercising other

means, such as writing letters, to communicate with others outside of” his place of confinement).

n. September 2022 Verbal Harassment

Plaintiff alleges that, in September 2022, Lt. Warren told another inmate that Plaintiff is a

“b*t*h a**,” and that she would “roll [Plaintiff] up out of here.”

Plaintiff fails to state a claim on this basis because such alleged verbal harassment, while

unprofessional, is not a constitutional violation. See Johnson, 357 F.3d at 546.

6. CoreCivic

Having addressed Plaintiff’s claims against the individual defendants, the Court returns to

his claims against CoreCivic. “[P]rivate corporations cannot be held liable on the basis of

respondeat superior or vicarious liability.” Rouster v. Cnty. of Saginaw, 749 F.3d 437, 453 (6th

Cir. 2014) (citing Street, 102 F.3d at 818). To state a claim against a private entity like CoreCivic,

Plaintiff must allege that his “‘constitutional rights were violated and that a policy or custom’ of

[CoreCivic] ‘was the moving force behind the deprivation of [his] rights.” Savoie v. Martin, 673

F.3d 488, 494 (6th Cir. 2012) (quoting Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir. 2010)).

As explained above, Plaintiff states several non-frivolous claims against individual staff

members at TTCC and WCFA. The Court has carefully reviewed each of these claims to determine

whether they implicate any CoreCivic policies or customs. And even liberally construing the

Complaint, Plaintiff provides specific factual allegations from which the Court can reasonably

infer a CoreCivic policy or custom related to just one of Plaintiff’s remaining claims: the claim

against Officer Rowe for deliberate indifference to Plaintiff’s serious psychiatric needs following

Plaintiff’s alleged panic attack at WCFA in April 2022. Rowe allegedly told Plaintiff that he would

not receive mental health services unless he said he was going to harm himself. The Court liberally

construes this as an allegation that CoreCivic has a policy or custom of providing mental health

treatment only to inmates who profess an intention to self-harm. For the purpose of initial review,

the Court concludes that this policy or custom caused Rowe’s asserted constitutional violation.

Accordingly, Plaintiff may proceed with a claim for deliberate indifference to serious psychiatric

needs against CoreCivic based on this incident.

7. Request for Transfer to a Federal Facility

Finally, Plaintiff requests transfer to protective custody at a federal prison. As neatly

explained by the Eastern District of Michigan, the Court does not have authority to order this relief:

Although in extreme cases a federal court may order state officials to transfer a

prisoner to a different facility to remedy a constitutional violation, such a power

does not extend to order the state to transfer a prisoner to the federal prison system,

or to requiring the federal prison system to accept the prisoner. “[W]hen a state has

primary custodial jurisdiction over an inmate, a federal court cannot order the

delivery of the defendant for service of a sentence in a federal institution. Such an

order would be tantamount to a transfer of custody beyond the jurisdiction of the

federal court.” Fisher v. Goord, 981 F. Supp. 140, 176 (S.D.N.Y. 1997); see also

Moore v. Schuetzle, 486 F. Supp. 2d 969, 981 (D.N.D. 2007).

Dunbar v. Caruso, No. 1:11-CV-10123-DT, 2011 WL 3474004, at *9 (E.D. Mich. July 12, 2011),

report and recommendation adopted, 2011 WL 3473321 (E.D. Mich. Aug. 9, 2011). Accordingly,

this request for injunctive relief will be dismissed.

IV. Conclusion

For these reasons, Plaintiff will be granted pauper status and this case may proceed for

further development. There is a complete list of remaining claims and Defendants in the Order

accompanying this Memorandum Opinion. Plaintiff should consult this Order for instructions he

must follow for the case to proceed. Plaintiff is also reminded that his repeated notices, petitions,

and inquiries providing updates on his conditions of confinement at WCFA have no effect in this

case, and Plaintiff should refrain from submitting any similar filings going forward.

WAVERLY DCs JR.

CHIEF UNITED STATES DISTRICT JUDGE

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