# Salse, Jr. v. Phillips

> District Court, W.D. Tennessee · October 18, 2019

URL: https://www.frixlaw.com/law-library/cases/10439534

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** October 18, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

TEDDY KING SALSE, JR., )
)
Plaintiff, )
)
VS. ) No. 19-1067-JDT-cgc
)
SHAWN PHILLIPS, ET AL., )
)
Defendants. )
)

ORDER DENYING MOTION TO SUPPLEMENT PLEADINGS,
PARTIALLY DISMISSING COMPLAINT, DIRECTING THAT
PROCESS BE ISSUED AND SERVED ON DEFENDANT DECKER,
AND DENYING REQUESTS FOR APPOINTMENT OF COUNSEL

On April 3, 2019, Plaintiff Teddy King Salse, Jr., who is incarcerated at the Morgan
County Correctional Facility in Wartburg, Tennessee, filed a pro se complaint pursuant to
42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos. 1 & 3.) The
complaint addresses events that allegedly occurred while Salse was incarcerated at the
Northwest Correctional Complex (NWCX) in Tiptonville, Tennessee. (ECF No. 1 at
PageID 3.) The Court issued an order on April 5, 2019, 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. 5.) The Clerk shall record the Defendants
as NWCX Warden Shawn Phillips; Mike Reeves, who is identified in the complaint as the
“Active” Warden at NWCX; Unit Manager Ralph Decker; Counselors First Name
Unknown (FNU) Woods and FNU Emery; NWCX Internal Affairs Lieutenant FNU Able
and Internal Affairs Sergeant FNU Rogers; NWCX Warden of Treatment Steve Jones;
Tennessee Department of Correction (TDOC) Commissioner Tony Parker; Correctional

Administrator Debra Johnson; and NWCX Unit 3 Team Member Officer FNU Hendrix.
On April 15, 2019, Salse moved to supplement his pleadings to add as a twelfth
defendant H.C. Brown, a former NWCX inmate now incarcerated at the Trousdale Turner
Correctional Center in Hartsville, Tennessee. (ECF No. 6.) Suit under § 1983 may be
brought against only state actors and cannot be brought against private parties. Brotherton

v. Cleveland, 173 F.3d 552, 567 (6th Cir. 1999). Thus, “[i]n order to be subject to suit
under § 1983, [a] defendant’s actions must be fairly attributable to the state.” Collyer v.
Darling, 98 F.3d 211, 231-32 (6th Cir. 1997). Although Brown is an inmate in the custody
of the State of Tennessee, he is not a state actor for purposes of suit under § 1983. Salse
provides no justification for attributing Brown’s actions to the state. Salse’s motion to add

Brown as a defendant in this matter is therefore DENIED.
Salse alleges that he is transgender and was stalked by inmate Brown while at
NWCX. (ECF No. 1 at PageID 6.) He alleges that on October 15, 2018, he and his
cellmate Stevie Gibson informed Defendant Decker that Brown was “being obsessed and
overly aggressive” towards Salse. (Id.) Decker assured Salse that he would talk to Brown

and “take care of it.” (Id.) Salse suggested against confronting Brown, who lived in the
same housing unit as Salse and who Salse feared. (Id.) Nonetheless, Decker spoke with
Brown but did not remove him from the housing unit. (Id.) Salse alleges that immediately
after Decker had spoken with Brown, Brown approached him “and became extremely
physical pushing and shoving plaintiff” and told him, “Keep my name out of your mouth.”
(Id.)
Four days after that confrontation, Salse alleges that Brown “violently choked” him.

(Id. at PageID 7.) Salse and Gibson told Decker that Brown had choked Salse, but Salse
alleges Brown still was not removed from the unit or any other protective measures taken.
(Id.) On October 22, 2018, three days later, Salse and Gibson spoke with Decker in his
office and reiterated their concerns about Brown, but “once again no action was taking [sic]
to protect plaintiff.” (Id.) Later that evening, Brown allegedly approached Salse in his cell

and asked, “Are you really going to keep denying me[?]” (Id.) Salse attempted to leave,
but Brown stopped him and told Salse he was “felling [sic] some type of way.” (Id. at
PageID 7-8.) When Salse again tried to leave the cell, Brown allegedly stabbed Salse then
picked him up off the floor by the throat, held him in midair, and stabbed him repeatedly.
(Id. at PageID 8.) Salse escaped from Brown and ran out of the cell and down the stairs,

yelling for help. (Id.) Officers Bell and Holenson (who are not Defendants) secured Salse
in the officer’s cage as Brown approached the cage, further threatened Salse, and admitted
to stabbing him. (Id.)
Salse was treated by medical personnel at NWCX before being taken for emergency
medical treatment to Dyersburg Hospital and, eventually, Memphis Medical One Hospital.

(Id.) Salse states he underwent exploratory surgery to determine the extent of his injuries.
(Id.) He alleges that he suffered two “nicks” in his intestines and “actually died for
approximately 45 seconds during surgery.” (Id.) He alleges that he was hospitalized for
six days and now suffers panic attacks, nightmares, acute pain, and PTSD and has
permanent scars. (Id. at PageID 8-9.)
Salse sues the Defendants in their official and individual capacities. (Id. at

PageID 20.) He seeks compensatory, punitive, and “special” damages. (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))).
Salse 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).
To the extent Salse intends to sue the Defendants in their official capacities, his
claims are against their employer, the TDOC. Claims against the TDOC are, in turn, treated
as claims against the State of Tennessee. See Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 (1989).
Salse, however, has no valid claim 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, 563 U.S. 247, 253-54 (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, 491 U.S. at 71.
Salse does not allege any misconduct by Defendant Phillips, Reeves, Able, Rogers,
Jones, Woods, Emery, Parker, Johnson, or Hendrix. He asserts identical vague claims
against each without specifying what that individual did or failed to do that violated his

constitutional rights. (ECF No. 1 at PageID 10-20.) Salse also alleges that “[a]ll named
defendants were informed by [inmate] James Taylor . . . of threats made against both
himself and plaintiff.” (Id. at PageID 8.) These general, cut-and-paste allegations do not
“‘allege, with particularity, facts that demonstrate what each defendant did to violate the
asserted constitutional right.’” Marcilis v. Twp. of Redford, 693 F.3d 589, 596-97 (6th Cir.
2012) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)); see Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s use of either the

collective term ‘Defendants’ or a list of the defendants named individually but with no
distinction as to what acts are attributable to whom, it is impossible for any of these
individuals to ascertain what particular unconstitutional acts they are alleged to have
committed.”). Salse therefore fails to state a claim against any of these Defendants.
The only Defendant against whom Salse directs allegations is Decker, who Salse

alleges failed to protect him from Brown. Salse’s allegations amount to a claim of
deliberate indifference, which arises under the Eighth Amendment’s prohibition of cruel
and unusual punishments. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v.
Brennan, 511 U.S. 825, 832-33 (1994) (quotations omitted) (noting that prison officials
“must take reasonable measures to guarantee the safety of the inmates” and “to protect

prisoners from violence at the hands of other prisoners”). “[N]ot all injuries suffered by
an inmate at the hands of another prisoner result in constitutional liability for prison
officials under the Eighth Amendment.” Wilson v. Yaklich, 148 F.3d 596, 600 (6th Cir.
1998). To state a claim under the Eighth Amendment, a plaintiff must satisfy an objective
and a subjective component. Farmer, 511 U.S. at 834. To satisfy the objective component,

“a prison official’s act or omission must result in the denial of ‘the minimal civilized
measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)). That is, a prisoner must show that he “is incarcerated under conditions posing a
substantial risk of serious harm.” Id.; see also Miller v. Calhoun Cnty., 408 F.3d 803, 812
(6th Cir. 2005). The subjective component of an Eighth Amendment violation requires a
prisoner to demonstrate that the official acted with the requisite intent; that is, that he had
a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson v. Seiter,

501 U.S. 294, 297, 302-03 (1991). Thus, “the prison official must know[] of and
disregard[] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837-38. In
the context of a failure-to-protect claim, a prison officer will not be held liable without a
showing that he or she “should have been aware of the reasonable likelihood of a potential
attack and intervened earlier.” Carico v. Benton, Ireland, & Stovall, 68 F. App’x 632, 639

(6th Cir. 2003).
Salse alleges that he notified Decker on at least three occasions that Brown was
threatening him and had been violent towards him. Although Decker told Salse he “would
take care of it,” Decker allegedly took no action to end the threats and violence towards
Salse. Decker may have spoken with Brown on one occasion. Salse, however,

subsequently notified Decker that the threats had not ended and had, instead, escalated
when Brown choked Salse on October 19. The threats culminated in a violent attack on
Salse that nearly cost him his life. Salse’s allegations about Brown show that the threat to
Salse was objectively serious. Salse also demonstrates that, because of Salse’s frequent
pleas for help, Decker was aware of the reasonable likelihood of a potential attack but failed

to intervene. The Court will allow Salse’s Eighth Amendment claim against Decker to
proceed.
In conclusion, the Court DISMISSES Salse’s official-capacity claims against all
Defendants and his individual-capacity claims against Defendants Phillips, Reeves, Able,
Rogers, Jones, Woods, Emery, Parker, Johnson, and Hendrix 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). Salse’s Eighth Amendment claim for failure to protect shall proceed

against Defendant Decker.
It is ORDERED that the Clerk shall issue process for Defendant Decker and deliver
that process to the U.S. Marshal for service. Service shall be made on Defendant Decker
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 Salse shall serve a copy of every subsequent document
he files in this case on the attorneys for Defendant Decker or on Defendant Decker
personally if he is unrepresented. Salse shall make a certificate of service on every
document he files. Salse shall familiarize himself with the Federal Rules of Civil Procedure

and this Court’s Local Rules.1
Salse has filed three motions requesting the appointment of counsel. (ECF Nos. 2,
7 & 9.)2 Pursuant to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent
any person unable to afford counsel.” A district court is vested with broad discretion in
determining whether to appoint counsel for an indigent civil litigant. See Lavado v.

1 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.
2 The motions docketed as ECF Nos. 7 & 9 are substantively identical. Only the location
and date in the certification at the bottom of the second page of each document are different.
Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993). Appointment of counsel in a civil case is
not a constitutional right, and courts generally do not appoint counsel in a civil case absent
a showing of “exceptional circumstances.” Id. at 605-06; see also Kilgo v. Ricks, 983 F.2d

189, 193 (11th Cir. 1993) (“The key [to determining whether exceptional circumstances
exist] is whether the pro se litigant needs help in presenting the essential merits of his or
her position to the court. Where the facts and issues are simple, he or she usually will not
need such help.”).
Salse asserts that counsel should be appointed because he has only eight months

remaining on his sentence and that once he is released, he will be homeless. (ECF No. 7
at PageID 87.) He further alleges that he has received help from another inmate with whom
he is no longer incarcerated. (Id. at PageID 87-88.) These assertions do not demonstrate
exceptional circumstances warranting appointment of counsel at this time. Salse’s request
for appointment of counsel is therefore DENIED without prejudice to refiling, if necessary,

at a later, appropriate time.
Salse 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10439534. Public record. Not legal advice.