Whiteside v. Duke

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

CEDRICK WHITESIDE, )

)

Plaintiff, )

)

VS. ) No. 17-1106-JDT-cgc

)

BRIAN DUKE, ET AL., )

)

Defendants. )

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING

PLAINTIFF TO PROVIDE ADDITIONAL INFORMATION TO

FACILITATE SERVICE OF PROCESS ON REMAINING DEFENDANT

On June 5, 2017, Plaintiff Cedrick Whiteside, who at the time of filing was a pretrial

detainee at the Henderson County Criminal Justice Complex (HCCJC) in Lexington, Tennessee,

filed a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis.

(ECF Nos. 1 & 2.) After Whiteside filed the financial documents required under the Prison

Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b), (ECF No. 6), the Court issued an order

granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to the Prison

Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 7.)

On May 30, 2019, the Court directed Whiteside to file a non-prisoner in forma pauperis

affidavit or pay the remaining portion of the filing fee because Whiteside had notified the Court of

his release from HCCJC. (ECF No. 25.) On June 5, 2019, however, Whiteside notified the Court

that he is again incarcerated at the HCCJC. (ECF No. 26) The Court therefore issued an order

reassessing the remaining portion of the civil filing fee in accordance with the PLRA. (ECF No.

28.)

In the intervening months, Whiteside filed several motions and amendments to his

complaint. The Court granted his motions to amend, (ECF Nos. 5, 10, 11, 12, 21), denied his

motion for service of process, (ECF No. 13), and granted his motion to dismiss two Defendants

from the lawsuit, (ECF No. 18). (ECF Nos. 17 & 24.) The Clerk shall record the Defendants as

Brian Duke, Henderson County Sheriff; Jackie Bausman, HCCJC Lieutenant; Officer Jesslyn

Smith; Nurse Derinda; Officer First Name Unknown (FNU) Shanks; FNU Pots and Doug

Williams, Troopers with the Tennessee Highway Patrol;1 Daphne Renfroe; Kim Vineyard; Quality

Correctional Health Care; and Henderson County.

Whiteside alleges that on April 14, 2017, he was arrested and taken to the HCCJC for

booking. (ECF No. 1 at PageID 2.) As Whiteside’s hands were handcuffed behind his back,

Trooper Pots allegedly pulled his hands upward, which “[b]roke the key of the Handcuff Inside

the cuffs” and caused pain in Whiteside’s shoulders and hand. (Id.) Whiteside alleges that Trooper

Williams also was present during this incident and held Whiteside when he was “assaulted” by

Trooper Pots. (ECF No. 5 at PageID 6.) An unspecified person allegedly told Whiteside “on the

side” before his arrest that if he did not remain quiet, he “would be Hanged From a Tree with an

exten[s]ion cord.” (ECF No. 1 at PageID 3.) Officer Shanks walked Whiteside to a holding cell

1 Whiteside interchangeably refers to Defendant Pots as an Officer and a Trooper, but he

does specifically identify Pots as an Officer with the “TN.H.P.” or Tennessee Highway Patrol

(THP). (ECF No. 1 at PageID 1; ECF No. 5 at PageID 15-16.) The THP is a division of the

Tennessee Department of Safety and Homeland Security. See https://www.tn.gov/safety/

tennessee-highway-patrol.html. For ease of clarity, the Court will refer to Pots as Trooper Pots.

In the amendment filed June 15, 2017, Whiteside identifies Williams as another THP Officer.

(ECF No. 5 at PageID 15-16.) The Court also will refer to Williams as a Trooper.

with his hand on Whiteside’s neck, which Whiteside alleges did not cause pain, so that Whiteside

“wouldn’t get any new charges or try to retaliate against Trooper Pots.” (Id.)

A few days later, Whiteside spoke with Nurse Derinda and requested treatment for the pain

in his arm. (Id.) Derinda said she would contact a doctor, and Whiteside received x-rays about a

week later. (Id.) The x-ray revealed that Whiteside had a dislocated thumb and torn ligaments in

his hand, for which he received two different casts from a doctor outside the HCCJC. (Id.)

Whiteside described his injury to Lieutenant Bausman, who did not report it to the Sheriff, and to

Officer Shanks, who told Whiteside “to pray about the situation.” (Id. at PageID 4.)

Whiteside alleges that he spoke with Sergeant Hatchett, who is not a Defendant, about

signing a “property form” so that money could be transferred to Whiteside’s wife. (Id.) Officer

Smith “fro[wned] on the situation then stated it wasn’t going to Happen.” (Id.) Whiteside alleges

that since speaking with Officer Smith, Lieutenant Bausman has denied him “access to call my

Lawyer,” denied “request slips,” and charged $600 for the treatment of his hand. (Id. at PageID 4-

5.) Whiteside in passing also alleges that inmates at the HCCJC are forced to eat in the same

room where others use the toilet. (Id. at PageID 5.)

In his amendments, Whiteside alleges that Defendant Renfroe “has continued to not abide

by the state notary of the public policies and laws.” (ECF No. 5 at PageID 15.) According to

Whiteside, Renfroe “is in charge of legal and law books” at the HCCJC and refused to provide

him legal books, or told him she could not find them, and refused to notarize legal documents. (Id.

at PageID 16.) Whiteside alleges that his grievances about Renfroe have gone unanswered. (Id.)

He also alleges that his grievances against Defendant Vineyard, who is in charge of trust fund

accounts at HCCJC, were mishandled. (ECF No. 10 at PageID 30.)

Whiteside further alleges that he “has been exposed to the Hepatitis Disease” at the

HCCJC. (ECF No. 21 at PageID 73.) He alleges that he was temporarily housed with another

inmate who, unknown to Whiteside, has Hepatitis A. (Id. at PageID 74-75.) Whiteside alleges

that he shared food and electronic cigarettes and played cards with the other inmate while housed

with him. (Id.) Whiteside alleges that “hundreds of inmates have passed through” the different

pods in the HCCJC, and he has had contact with dozens, but there is no medical protocol in place

to test incoming inmates for diseases or bloodborne illnesses. (Id. at PageID 76.) Whiteside

alleges that in June 2018, the HCCJC staff learned that the inmate had Hepatitis A, and the entire

jail, including the staff, were vaccinated for Hepatitis A. (Id. at PageID 78.) He contends,

however, that a six-month follow-up vaccine is required, and he questions whether he will receive

it. (Id.)

Whiteside sues the Defendants in their individual and official capacities. (ECF No. 1 at

PageID 5.) He seeks $100,000 in damages from each Defendant. (Id. at PageID 6.)

The Court is required to screen prisoner complaints and to dismiss any complaint, or any

portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may be

granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may be

granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662,

677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied.

Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts the complaint’s “well-

pleaded” factual allegations as true and then determines whether the allegations “plausibly suggest

an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal,

556 U.S. at 681). Conclusory allegations “are not entitled to the assumption of truth,” and legal

conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Although a

complaint need only contain “a short and plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make

a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555

n.3.

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted

by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting

Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt

from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. Jan. 31, 2011)

(affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements”

and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”

(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

Whiteside filed his complaint pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress . . . .

To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights

secured by the “Constitution and laws” of the United States (2) committed by a defendant acting

under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).

Whiteside’s official-capacity claims against Defendants Pots and Williams must be

construed as having been brought against their employer, the Tennessee Department of Safety and

Homeland Security. Claims against the Department, in turn, are treated as claims against the State

of Tennessee. The Eleventh Amendment to the United States Constitution provides that “[t]he

Judicial power of the United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment has

been construed to prohibit citizens from suing their own states in federal court. Welch v. Tex.

Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984); see also Va. Office for Protection & Advocacy v. Stewart,

131 S. Ct. 1632, 1638 (2011) (“A State may waive its sovereign immunity at its pleasure, and in

some circumstances Congress may abrogate it by appropriate legislation. But absent waiver or

valid abrogation, federal courts may not entertain a private person’s suit against a State.” (citations

omitted)). Tennessee has not waived its sovereign immunity. See Tenn. Code Ann.

§ 20-13-102(a). Moreover, a state is not a person within the meaning of 42 U.S.C. § 1983. Lapides

v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989). Whiteside thus has no claim against Defendants Pots and Williams

in their official capacities.

Whiteside’s official capacity claims against Sheriff Duke and the various officers and other

employees at the HCCJC are construed as claims against their employer, Henderson County.

When a § 1983 claim is made against a municipality or county, the court must analyze two distinct

issues: (1) whether the plaintiff’s harm was caused by a constitutional violation; and (2) if so,

whether the municipality or county is responsible for that violation. Collins v. City of Harker

Heights, Tex., 503 U.S. 115, 120 (1992).

A local government such as a municipality or county “cannot be held liable solely because

it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on

a respondeat superior theory.” Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis

in original); see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). A municipality

may be held responsible for a constitutional deprivation only if there is a direct causal link between

a municipal policy or custom and the alleged deprivation. Monell, 436 U.S. at 691-92; Deaton v.

Montgomery Co., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To demonstrate municipal liability, a

plaintiff “must (1) identify the municipal policy or custom, (2) connect the policy to the

municipality, and (3) show that his particular injury was incurred due to execution of that policy.”

Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d

358, 364 (6th Cir. 1993)). “[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of

the municipality from acts of employees of the municipality, and thereby make clear that municipal

liability is limited to action for which the municipality is actually responsible.’” City of St. Louis

v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80

(1986) (emphasis in original)).

Whiteside does not allege that he suffered an injury because of an unconstitutional policy

or custom of Henderson County. He alleges that new inmates at the HCCJC do not receive a

formal medical assessment, including a blood test or screening for communicable diseases.

Whiteside, however, does not identify this as a practice or custom of the facility, nor does he

connect it to the County. He therefore fails to state a claim against Henderson County or any

Henderson County employee in his or her official capacity.

Whiteside’s official capacity claim against Nurse Derinda is construed against Quality

Correctional Health Care, which he alleges employed Derinda and provides health care at the

HCCJC. “A private corporation that performs the traditional state function of operating a prison

acts under color of state law for purposes of § 1983.” Thomas v. Coble, 55 F. App’x 748, 748 (6th

Cir. 2003) (citing Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996)). The Sixth

Circuit has applied the standards for assessing municipal liability to claims against private

corporations that operate prisons or provide medical care or food services to prisoners. Id. at 748-

49; Street, 102 F.3d at 817-18; Johnson v. Corr. Corp. of Am., 26 F. App’x 386, 388 (6th Cir.

2001); see also Eads v. State of Tenn., No. 1:18-cv-00042, 2018 WL 4283030, at *9 (M.D. Tenn.

Sept. 7, 2018). To prevail on a § 1983 claim against Quality Correctional, Whiteside “must show

that a policy or well-settled custom of the company was the ‘moving force’ behind the alleged

deprivation” of his rights. Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 627 (6th Cir. 2011).

Whiteside has not alleged that a policy or custom of Quality Correctional was the “moving

force” behind an alleged violation of his constitutional rights. He therefore fails to state a claim

against Quality Correctional or Nurse Derinda in her official capacity.

Whiteside’s allegations against Trooper Pots in his individual capacity amount to a claim

of excessive force. At the time of the alleged assault, Whiteside was an arrestee or pretrial detainee

whose protection against excessive force is provided by the Fourteenth Amendment. Kingsley v.

Hendrickson, 135 S. Ct. 2466, 2473 (2015). Excessive force claims brought by pretrial detainees

are analyzed under the Fourteenth Amendment’s standard of objective reasonableness, which

“turns on the ‘facts and circumstances of each particular case.’” Id. (quoting Graham v. Connor,

490 U.S. 386, 396 (1989)). The Court must judge the reasonableness of a particular use of force

“from the perspective of a reasonable officer on the scene, including what the officer knew at the

time, not with the 20/20 vision of hindsight.” Id.

Under an objective reasonableness inquiry, “the question is whether the officers’ actions

are objectively reasonable in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.” Graham, 490 U.S. at 397 (citations omitted). The proper

application of this standard requires consideration of the following factors:

the relationship between the need for the use of force and the amount of force used;

the extent of the plaintiff’s injury; any effort made by the officer to temper or to

limit the amount of force; the severity of the security problem at issue; the threat

reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Kingsley, 135 S. Ct. at 2473. This list is not exhaustive but illustrates some of the “objective

circumstances potentially relevant to a determination of excessive force.” Id.

Whiteside states that he was in the booking area at the HCCJC with his hands handcuffed

behind his back when Trooper Pots allegedly pulled Whiteside’s hands up, injuring him. Because

Whiteside was handcuffed, Pots was prohibited from using gratuitous force on Whiteside.

See Bultema v. Benzie Cnty., 146 F. App’x 28, 35 (6th Cir. 2005); see also Brown v. Lewis, 779

F.3d 401, 419 (6th Cir. 2015) (“[T]he use of violence against a subdued and non-resisting

individual has been clearly established as excessive, regardless of whether the individual had been

placed in handcuffs.”). Although Whiteside does not allege whether he was resisting any officers’

orders at the time, he alleges that Trooper Pots pulled his arms upward with enough force to break

the key inside of the handcuffs and cause Whiteside pain to his shoulders and hand. Taking the

facts alleged as true, Whiteside sufficiently states a claim of excessive force against Trooper Pots.

The Court will allow this claim to proceed.

Whiteside also seeks to hold Defendants Shanks and Williams liable for Pots’s actions

because they were present in the booking area at the HCCJC when Whiteside was injured.

“[A] correctional officer who observes an unlawful beating may . . . be held liable under § 1983

without actively participating in the unlawful beating.” McHenry v. Chadwick, 896 F.2d 184, 188

(6th Cir. 1990). However, the facts alleged must show that the officers “provid[ed] an opportunity

for the attack and [did] nothing” or remained “idly by while a known attack took place without

intervening” Carico v. Benton, Ireland, & Stovall, 68 F. App’x 632, 639 (6th Cir. 2003). The

officers will not be held liable without a showing that they “should have been aware of the

reasonable likelihood of a potential attack and intervened earlier.” Id.

Whiteside alleges Defendants Shanks and Williams were present when Trooper Pots

injured Whiteside’s arm and that Williams was holding Whiteside when the injury occurred. He

also alleges that immediately after, Shanks escorted Whiteside to a holding cell to prevent him

from retaliating against Pots. Whiteside does not allege that either Shanks or Williams knew or

should have known that Pots would pull up on Whiteside’s arms and injure him or had the

opportunity to prevent Pots’s action. He instead alleges only a single, unexpected use of force

before Shanks intervened and removed Whitefield from Pots. These allegations are insufficient to

hold Defendant Shanks or Williams liable under § 1983 for Pots’s actions.

Whiteside alleges that Nurse Derinda provided inadequate medical care for his hand. “The

Eighth Amendment’s prohibition on cruel and unusual punishment generally provides the basis to

assert a § 1983 claim of deliberate indifference to serious medical needs, but where that claim is

asserted on behalf of a pre-trial detainee, the Due Process Clause of the Fourteenth Amendment is

the proper starting point.” Winkler v. Madison Cnty., 893 F.3d 877, 890 (6th Cir. 2018) (quoting

Phillips v. Roane Cnty., 534 F.3d 531, 539 (6th Cir. 2008)). Like an Eighth Amendment claim, a

Fourteenth Amendment claim of deliberate indifference has both an objective and a subjective

component. Id. To satisfy the objective component, “the detainee must demonstrate the existence

of a sufficiently serious medical need.” Id. (quoting Spears v. Ruth, 589 F.3d 249, 254 (6th Cir.

2009)). “For the subjective component, the detainee must demonstrate that the defendant

possessed a sufficiently culpable state of mind in denying medical care.” Id. at 891 (quoting

Spears, 589 F.3d at 254). A defendant has a sufficiently culpable state of mind if he “knows of

and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,

837 (1994).

Whiteside’s allegations that he suffered a dislocated thumb and torn ligaments satisfy the

objective component. However, he cannot satisfy the subjective component. Whiteside alleges

that he received treatment from a doctor, including x-rays on his hand and two different casts.

When a plaintiff has received some medical treatment, “‘federal courts are generally reluctant to

second guess medical judgments and to constitutionalize claims which sound in state tort law.’”

Burgess v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013) (quoting Westlake v. Lucas, 537 F.2d 857,

860 n.5 (6th Cir. 1976)). Although Whiteside alleges he had to wait a week to see the doctor, he

does not allege that the delay was intentional or caused him further harm. The delay, at most, may

constitute negligence, which does not amount to a constitutional violation. See Farmer, 511 U.S.

at 835-36. Whiteside therefore does not state a Fourteenth Amendment claim against Nurse

Derinda.

Whiteside also alleges that he was exposed to Hepatitis A and seeks to assert a Fourteenth

Amendment claim against Defendants Duke, Bausman, Quality Care, and Henderson County.

Even had Whiteside properly alleged a basis for such liability against Quality Care or Henderson

County, this allegation does not state a claim against any Defendant. Whiteside does not allege

that he suffers from any actual medical condition as a result of the exposure. He alleges only that

he was concerned about his health after he learned that a fellow inmate, with whom he temporarily

was housed and shared food and e-cigarettes, had Hepatitis A. The HCCJC vaccinated the entire

jail population after learning that the inmate had Hepatitis A, and Whiteside does not allege that

he now has Hepatitis A. Under these particular circumstances, Whiteside’s fear that he might

develop a future medical condition does not qualify as a serious medical need. Moreover, the

PLRA bars prisoner suits “for mental or emotional injury suffered while in custody without a prior

showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e); see Braswell

v. Corr. Corp. of Am., 419 F. App’x 522, 626 (6th Cir. 2011). Therefore, Whiteside does not state

a claim regarding his alleged potential exposure to Hepatitis A.2

Whiteside’s allegation that he was forced to eat in the same room where inmates use the

toilet also fails to state a claim. He does not allege that he was harmed by having to eat in close

proximity to the toilet. The Constitution does not protect a prisoner from every unpleasant prison

experience. See Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). A prisoner must allege

“extreme deprivations . . . to make out a conditions-of-confinement claim.” Hudson v. McMillian,

503 U.S. 1, 8-9 (1992). The alleged conditions do not constitute an objectively extreme

deprivation or offend contemporary standards of decency. See Baggett v. Fuson, No. 3:14-CV-

02366, 2015 WL 328348, at *2 (M.D. Tenn. Jan. 23, 2015) (dismissing conditions of confinement

claim that inmates must eat in cells near toilets as “insufficiently serious” to constitute cruel and

2 To the extent Whiteside seeks to sue on behalf of other inmates who may have been

exposed to Hepatitis A, he lacks standing to assert those claims. One of the three elements of

standing is that “the plaintiff must have suffered an injury in fact—an invasion of a legally

protected interest which is (a) concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal

quotation marks, footnote and citations omitted). “In requiring a particular injury, the Court

meant that the injury must affect the plaintiff in a personal and individual way.” Arizona

Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011) (internal quotation marks and

citation omitted).

unusual punishment). What’s more, Whiteside does not allege that any named Defendant was

aware of the alleged conditions and disregarded an excessive risk to his health or safety.

Whiteside alleges that Defendant Bausman denied him access to call his attorney. Inmates

have a right of meaningful access to their counsel, but that right “does not require prison officials

to provide that access by any particular means, such as the unlimited use of telephones.” Cesal v.

Bureau of Prisons, No. CIVA 04CV281 DLB, 2006 WL 2803057, at *5 (E.D. Ky. Sept. 28, 2006)

(citing Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir. 1992)); cf. Wooden v. Norris, 637 F. Supp.

543, 556 n.4 (M.D. Tenn. 1986) (citing cases in which “particular restrictions on inmate telephone

use were reasonable in light of other means of access to the courts provided by the prison

administration”). Whiteside does not allege that he has been entirely deprived of access to his

attorney. He does not allege that he may not receive calls from his attorney, send mail to his

attorney, or place no attorney phone calls whatsoever. His lone allegation that he was denied

access to make calls to his attorney, without more, does not state a claim.

Whiteside’s allegations that Defendant Renfroe has denied him access to legal books and

refused to notarize certain documents amount to a claim that he was denied access to the courts.

Prisoners and pretrial detainees retain a constitutional right of access to the courts. Bounds v.

Smith, 430 U.S. 817, 821-22 (1977) (citing Ex Parte Hull, 312 U.S. 546 (1941)). That right

“extends to direct appeals, habeas corpus applications, and civil rights claims only.” Thaddeus-X

v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc). To protect this right, prison authorities

must “provid[e] prisoners with adequate law libraries or adequate assistance from persons trained

in the law.” Bounds, 430 U.S. at 828. To have standing to pursue a First Amendment claim that

he was denied access to the courts, Whiteside must show that “prison officials’ conduct inflicted

an ‘actual injury,’ i.e., that the conduct hindered his efforts to pursue a nonfrivolous legal claim.”

Rodgers v. Hawley, 14 F. App’x 403, 409 (6th Cir. 2001) (citation omitted); see Thaddeus-X, 175

F.3d at 394. In addition, “the underlying cause of action . . . is an element that must be described

in the complaint, just as much as allegations must describe the official acts frustrating the

litigation.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) (citing Lewis v. Casey, 518 U.S.

343, 353 & n.3 (1996)).

Whiteside fails to state a claim that he was denied access to the courts. Although he alleges

Defendant Renfroe denied him legal books and notary services, he does not allege that he was

unable to pursue a legal claim because of Renfroe’s actions or otherwise suffered any injury. Nor

does Whiteside specify what kind of action he sought to file or describe the legal documents for

which he was denied notarization. Furthermore, to the extent he seeks access to the law library in

connection with his criminal proceeding, Whiteside concedes that he is represented by an attorney.

Whiteside also alleges that his grievances against Defendants Renfroe and Vineyard were

mishandled or never answered. “There is no inherent constitutional right to an effective prison

grievance procedure.” See LaFlame v. Montgomery Cnty. Sheriff’s Dep’t, 3 F. App’x 346, 348 (6th

Cir. 2001) (citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)). Nor is there a

“constitutionally protected due process right to unfettered access to prison grievance procedures.”

Walker v. Michigan Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005). A § 1983 claim

therefore cannot be premised on contentions that the grievance procedure was inadequate or

arbitrary. Id.; see LaFlame, 3 F. App’x at 348.

In conclusion, apart from his individual-capacity claim against Defendant Pots, the Court

DISMISSES Whiteside’s complaint, for failure to state a claim on which relief can be granted,

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-(2). Whiteside’s Fourteenth

Amendment claim of excessive force against Trooper Pots may proceed.

Although Whiteside has stated a valid claim against Trooper Pots, process cannot be issued

at this time. Whiteside has not identified the THP district where Pots currently is assigned and has

not provided a work or home address for Pots or any other information in the complaint or the

amendments regarding where Pots may be served.

Whiteside is ORDERED to provide to the Court, in writing and on or before July 15, 2019,

either any additional information he has regarding an address where Pots may be served or a

statement that he is unable to obtain that information.

Whiteside is warned that failure to respond to this order in a timely manner may result in

the dismissal of this case in its entirety, without further notice for failure to prosecute.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE