Marable v. Gibson County Correctional Complex

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

BOBBY LEE MARABLE, )

)

Plaintiff, )

)

VS. ) No. 18-1057-JDT-cgc

)

GIBSON COUNTY CORRECTIONAL )

COMPLEX, ET AL., )

)

Defendants. )

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING THAT

PROCESS BE ISSUED AND SERVED ON DEFENDANT MILAN

On April 5, 2018, Plaintiff Bobby Lee Marable, who is incarcerated at the Gibson

County Correctional Complex (GCCX) in Trenton, Tennessee, filed a pro se complaint

and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court issued an order

on April 6, 2018, 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. 4.) The Court also granted Marable’s motion to supplement his complaint to

add the names of the Defendants he sues and to request a jury trial. (ECF Nos. 5 & 6.) The

Clerk shall record the Defendants as the GCCX, Lieutenant Nick Milan, Lieutenant First

Name Unknown (FNU) Kelly, Lieutenant Christine Combs, Twila Claybon, Dakota Hicks,

and Officer FNU Jordan.

Marable alleges that on August 10, 2017, Lieutenant Milan and Officer Miller (who

Marable does not name as a Defendant) used excessive force while arresting Marable.

(ECF No. 1 at PageID 1.) Marable claims that, while he was handcuffed and laying on his

stomach, Milan punched him “in the right side of my face and head at least 10 times,” while

Miller twisted Marable’s handcuffs causing his wrists to bleed and hands to turn numb.

(Id.) The officers then allegedly dragged Marable by his feet despite his protests that an

object protruding from the ground was jabbing and cutting him. (Id.) The officers

allegedly responded that they did not care about his discomfort and refused to allow

Marable to stand, saying “that’s what [you] get.” (Id.)

The officers took Marable to the GCCX, where Officer Jordan allegedly refused

him medical attention. (Id. at PageID 2.) Officers Jordan, Milan, and Miller reiterated,

“that’s what [you] get for running from the Officers.” (Id.) Medical personnel eventually

arrived but told Marable nothing was wrong with him. (Id.) A transporting officer

informed the medical staff that Marable likely was dehydrated, causing him to vomit out

the patrol car window en route to GCCX. (Id.) Marable was processed the next morning

and released on bond. (Id.) He alleges that a pocket knife and money from his wallet were

missing from the personal items returned to him. (Id.)

Marable alleges that months later, on February 27, 2018, when he was in custody at

the GCCX, Officers Claybon, Hicks, and Combs took his mattress that he had exchanged

with an inmate who was being released. (Id.) Marable was forced to sleep on the concrete

floor for several days, which “was very uncomfortable sleeping.” (Id. at PageID 2-3.)

On March 7, 2018, Lieutenant Kelly came to Marable’s cell to deny him a cell transfer.

(Id. at PageID 3.) Marable alleges that Kelly knew Marable had no mattress but said

nothing about it. (Id.) Officers Jordan and Paige (who Marable does not name as a

Defendant) brought Marable a mattress the next day. (Id.)

Marable in passing also alleges that his diet “needs to be fixed because I have acid

reflux.” (Id.) He claims he has filled out several medical requests for medical attention

but still has not received a different diet. (Id.)

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))).

Marable does not specify the jurisdictional basis for his complaint or the relief he

seeks. Based on the allegations in the complaint, the Court presumes Marable intends to

proceed 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).

To the extent Marable intends to assert official-capacity claims against the

Defendants, his claims are against their employer, GCCX. Those claims in turn are

construed as against Gibson 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)).

Marable does not allege that he suffered an injury because of an unconstitutional

policy or custom of Gibson County. He instead alleges that the individual Defendants

violated his constitutional rights through their own actions. Marable therefore fails to state

a claim against Gibson County.

Marable’s allegation that Officer Milan punched him while Marable was handcuffed

amounts to a claim of excessive force.1 At the time of Milan’s actions, Marable was being

arrested. His claim therefore arises under the Fourth Amendment, “which guarantees

citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the

person.” Graham v. Connor, 490 U.S. 386, 394 (1989); see Tennessee v. Garner, 471 U.S.

1, 7-8 (1985) (claim of excessive force to effect arrest analyzed under a Fourth Amendment

standard). Under the Fourth Amendment, the Court applies “an objective reasonableness

test, looking to the reasonableness of the force in light of the totality of the circumstances

confronting the defendants, and not to the underlying intent or motivation of the

defendants.” Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013) (citing Dunigan v.

Noble, 390 F.3d 486, 493 (6th Cir. 2004), and Graham, 490 U.S. at 396-97). The Court

balances “the nature and quality of the intrusion on [a plaintiff’s] Fourth Amendment

1 Marable lists related allegations against Officer Miller but does not name Miller as a

Defendant in either his original complaint or his supplement specifically listing each Defendant

he wishes to sue. (ECF No. 5.) The Court therefore will not consider the allegations specific to

Officer Miller in this claim.

interests against the countervailing governmental interests at stake.” Id. (quoting Ciminillo

v. Streicher, 434 F.3d 461, 466-67 (6th Cir. 2006)).

This balance involves considering three factors: 1) the severity of the crime,

2) whether the suspect posed an immediate threat to the safety of the officers or

by-standers, and 3) whether the suspect was actively resisting arrest or attempting to evade

arrest by fleeing. Burgess, 735 F.3d at 472-73 (citing Martin v. City of Broadview Heights,

712 F.3d 951, 958 (6th Cir. 2013) (quoting Graham, 490 U.S. at 396)). The Court must

assess the factors “from the perspective of a reasonable officer on the scene making a

split-second judgment under tense, uncertain, and rapidly evolving circumstances without

the advantage of 20/20 hindsight.” Id. at 473 (quoting Graham, 490 U.S. at 396-97).

Marable’s complaint does not disclose his crime, but his allegations suggest that he

was subdued after running from the officers. (ECF No. 1 at PageID 2.) Nor does the

complaint inform whether Marable posed any threat at the time he was caught and taken to

the ground. Marable alleges that he was handcuffed and laying on his stomach on the

ground when Officer Milan punched him “in the right side of [his] face and head at least

10 times.” (Id. at PageID 1.) The Sixth Circuit has held that “striking a neutralized suspect

who is secured by handcuffs is objectively unreasonable.” Schreiber v. Moe, 596 F.3d 323,

332 (6th Cir. 2010); see also Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002) (concluding

that “there was simply no governmental interest in continuing to beat [a suspect] after he

had been neutralized, nor could a reasonable officer have thought there was”); Adams v.

Metiva, 31 F.3d 375, 386 (6th Cir. 1994) (holding that use of force after suspect had been

incapacitated by mace would be excessive as a matter of law); McDowell v. Rogers,

863 F.2d 1302, 1307 (6th Cir. 1988) (concluding that blow with nightstick to handcuffed,

unresisting suspect would be gratuitous and therefore unreasonable).

Marable’s allegations, taken as true, suggest Officer Milan acted unreasonably.

Though Marable may have been fleeing officers initially, he had been taken to the ground

and handcuffed before Milan repeatedly punched him. It is not clear from the complaint

whether by-standers where nearby or whether Marable posed any threat to them or the

officers. Under Sixth Circuit precedent, the allegations of the complaint sufficiently state

a Fourth Amendment claim of excessive force against Officer Milan.

Marable next alleges that Officer Jordan refused him medical treatment at GCCX

while Marable was undergoing booking procedures but that he eventually did see medical

personnel. He also alleges that Officers Claybon, Hicks, and Combs took his mattress

while he was an inmate at GCCX.

“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)). A claim of deliberate indifference under either the Eighth or

Fourteenth Amendment has both an objective and a subjective component. Id. (Fourteenth

Amendment); Farmer v. Brennan, 511 U.S. 825, 834 (1994) (Eighth Amendment). To

satisfy the objective component under the Fourteenth Amendment, “the detainee must

demonstrate the existence of a sufficiently serious medical need.” Winkler, 893 F.3d at

890 (quoting Spears v. Ruth, 589 F.3d 249, 254 (6th Cir. 2009)). To satisfy the objective

component under the Eighth Amendment, a prisoner must show that he “is incarcerated

under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. For

the subjective component under either Amendment, the detainee/prisoner “must

demonstrate that the defendant possessed a sufficiently culpable state of mind in denying

medical care.” Winkler, 893 F.3d at 891 (quoting Spears, 589 F.3d at 254); see Farmer,

511 U.S. at 834. A defendant has a sufficiently culpable state of mind if he “knows of and

disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.

Marable’s allegations against Officer Jordan do not meet either component of a

Fourteenth Amendment claim of deliberate indifference. Marable alleges that his right arm

had been cut from being dragged along the ground, and he believed he was dehydrated

when he arrived at the GCCX. Though Officer Jordan initially denied Marable medical

attention, Marable was examined by medical personnel while being booked and was told

there was nothing wrong. Marable may have been uncomfortable as he awaited booking,

but his allegations do not rise to the level of an objectively serious medical need. Nor does

Marable allege that Officer Jordan subjectively knew Marable had a serious medical need,

which it appears Marable did not have, and disregarded it. Marable’s allegations therefore

fail to state a claim against Officer Jordan.

Marable’s allegations against Officers Claybon, Hicks, and Combs fare no better.

The Sixth Circuit has held that, in the absence of evidence that a prisoner suffered a

physical injury, the deprivation of a mattress and bedding for a fixed period of time does

not violate the Eighth Amendment. Taylor v. Boyd, No. 06-2412-JPM-DKV, 2008 WL

3852184, at *7 (W.D. Tenn. Aug. 15, 2008) (citing Grissom v. Davis, 55 F. App’x 756,

757-58 (6th Cir. 2003), Shaw v. Mangione, 27 F. App’x 407, 408 (6th Cir. 2001), and Jones

v. Toombs, 77 F.3d 482, 1996 WL 67750, at *1 (6th Cir. 1996) (unpublished) (“The

defendants did not violate Jones’s Eighth Amendment rights by depriving him of a mattress

for a two week period.”)); see also Schroeder v. Kaplan, No. 93-17123, 1995 WL 398878,

at *2 (9th Cir. July 7, 1995) (requiring prisoner to sleep on floor for a four-week period

without use of mattress does not violate the Eighth Amendment). Marable does not allege

he suffered any injury from sleeping without a mattress. His claim is therefore also barred

under 42 U.S.C. § 1997e(e), which 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.”

Marable alleges in passing that Lt. Kelly knew Marable did not have a mattress but

did not say anything about it. Under § 1983, however, “[g]overnment officials may not be

held liable for the unconstitutional conduct of their subordinates under a theory of

respondeat superior.” Iqbal, 556 U.S. at 676; see also Bellamy v. Bradley, 729 F.2d 416,

421 (6th Cir. 1984). Thus, “a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.” Iqbal, 556

U.S. at 676. Marable does not allege that Lt. Kelly had any role in the removal of his

mattress. Even if he did so allege, there was no constitutional violation in forcing Marable

to sleep without a mattress. Marable’s allegations against Lt. Kelly therefore fail to state a

claim.

Marable’s allegations regarding the food at GCCX also arise under the Eighth

Amendment, which imposes a duty to “ensure that inmates receive adequate food, clothing,

shelter, and medical care.” Farmer, 511 U.S. 825, 832 (1994). The Eighth Amendment,

however, “is concerned only with ‘deprivations of essential food, medical care, or

sanitation’ or ‘other conditions intolerable for prison confinement.” Richmond v. Settles,

450 F. App’x 448, 454 (6th Cir. 2011) (quoting Rhodes v. Chapman, 452 U.S. 337, 348

(1981)). Marable alleges only that, because he has acid reflux, his diet “needs to be fixed.”

(ECF No. 1 at PageID 3.) He does not allege that he suffers pain from his condition or that

it is sufficiently serious to satisfy the objective component of an Eighth Amendment claim.

See Williamson v. Bolton, No. 3:18-CV-529-CHB, 2019 WL 96306, at *5 (W.D. Ky. Jan.

3, 2019) (“Plaintiff’s vague allegation that he was in pain due to acid reflex is not sufficient

to establish a serious medical need to meet the objective standard of a deliberate

indifference claim.”). Moreover, Marable does not allege that any named Defendant is

aware of his condition and has refused to change the food he is given. He therefore fails

to state a claim regarding the food at GCCX or medical attention for his acid reflux.

Marable also alleges that some of his property was missing when he retrieved it after

posting bond. He does not allege, however, that any named Defendant is responsible for

taking his property. When a complaint fails to allege any action by a Defendant, it

necessarily fails to “state a claim for relief that is plausible on its face.” Twombly, 550 U.S.

at 570. Moreover, claims for deprivation of property are not actionable under § 1983 if

adequate state remedies are available to redress the deprivation. See, e.g., Parratt v. Taylor,

451 U.S. 527 (1981), partially overruled on other grounds by Daniels v. Williams, 474 U.S.

327, 330-31 (1986); Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985). This is true even if

the property is taken intentionally. Hudson v. Palmer, 468 U.S. 517, 533 (1984). “[T]he

State of Tennessee does provide an adequate post-deprivation remedy for takings of

property.” McMillan v. Fielding, 136 F. App’x 818, 820 (6th Cir. 2005) (citing Brooks v.

Dutton, 751 F.2d 197, 199 (6th Cir. 1985)). Marable therefore must seek relief for the

taking of his property in state court.

In conclusion, the Court DISMISSES Marable’s claims against GCCX, Lieutenant

Kelly, Lieutenant Combs, Officer Claybon, Officer Hicks, and Officer Jordan for failure

to state a claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)

and 1915A(b)(1).

It is ORDERED that the Clerk shall issue process for Defendant Milan and deliver

that process to the U.S. Marshal for service. Service shall be made on Defendant Milan

pursuant to Federal Rule of Civil Procedure 4(e) and Tennessee Rules of Civil Procedure

4.04(1) and (10) by registered or certified mail or personally if mail service is not effective.

All costs of service shall by advanced by the United States.

It is further ORDERED that Marable shall serve a copy of every subsequent

document he files in this cause on the attorneys for Defendant Milan. Marable shall make

a certificate of service on every document filed. Marable shall familiarize himself with

Federal Rules of Civil Procedure and this Court’s Local Rules.2

2 A copy of the Local Rules may be obtained from the Clerk or on the Court’s website at

https://www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf.

Marable is reminded that he must promptly notify the Clerk of any change of address

or extended absence. Failure to comply with these requirements, or any other order of the

Court, may result in the dismissal of this case without further notice.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE