# Posey v. Jackson

> District Court, W.D. Tennessee · October 29, 2019

URL: https://www.frixlaw.com/law-library/cases/10439537

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** October 29, 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

CHRISTOPHER ALLEN POSEY, )
)
Plaintiff, )
)
VS. ) No. 19-1194-JDT-cgc
)
KARL JACKSON, ET AL., )
)
Defendants. )

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On July 23, 2019, Plaintiff Christopher Allen Posey, who is incarcerated at the Obion
County Jail (Jail) in Union City, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983
and a motion to proceed in forma pauperis in the U.S. District Court for the Southern District of
Iowa. (ECF Nos. 1 & 2.) On September 4, 2019, Chief U.S. District Judge John A. Jarvey issued
an order transferring the case to this Court. (ECF No. 3.) After the case was transferred, and after
Posey filed the requisite financial documents, this 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. 9.) The Clerk shall record the Defendants as Obion
County Sheriff Karl Jackson and Jail Administrator Kent Treece.
Posey’s allegations are as follows:
My Constitutional rights have been violated. There[’]s personal conflict from the
officers towards me. I[’]m suffering from cruel and unusual punishment. I have
been placed among federal inmates and had an altercation with one and was
subjected to bodily harm. I had 5 stitches in my lower lip and placed back in the
pod with federal prisoners. Karl Jackson has repeatedly taken me off the prison
transport.
(ECF No. 1 at PageID 4.) Posey seeks compensatory damages, a release on parole or a transfer to
another facility, and payment of his court costs and attorney fees. (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))).
Posey 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).
Posey’s allegations are vague, but he appears to allege that he has been subjected to cruel
and unusual punishment in violation of the Eighth Amendment.1 See generally Wilson v. Seiter,
501 U.S. 294 (1991). 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

1 It is unclear whether Posey is a convicted inmate whose protection against cruel and
unusual punishment stems from the Eighth Amendment or a pretrial detainee protected by the
Fourteenth Amendment. The allegation that he was repeatedly taken off the prison transport
suggests Posey is a convicted inmate awaiting initial transfer to, or return to, a state prison. In
any event, with the exception of excessive force claims, see Kingsley v. Hendrickson, 135 S. Ct.
2466 (2015), the scope of the protections afforded to detainees and convicted inmates is the
same. See Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018). Posey’s claims will therefore
be analyzed under Eighth Amendment principles.
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.
Posey does not allege any misconduct by Defendant Treece. 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.
Posey’s only allegation against Defendant Sheriff Jackson is that Jackson “has repeatedly
taken me off the prison transport.” (ECF No. 1 at PageID 4.) The Court construes this statement
as an allegation that Jackson has denied Posey’s request to transfer to another facility. Prisoners,
however, do not have a constitutional right to be assigned to a particular prison, security

classification, or housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983);
Meachum v. Fano, 427 U.S. 215, 225 (1976); Montanye v. Haymes, 427 U.S. 236, 243 (1976).
Posey, therefore, does not state a claim against Jackson for denying him a transfer.
Posey alleges he was “placed among federal inmates and had an altercation with one and
was subjected to bodily harm,” after which he was treated for his injury and “placed back in the
pod with federal prisoners.” (ECF No. 1 at PageID 4.) The Court construes this allegation as a
claim that Jail officials failed to protect him from harm. In the context of an Eighth Amendment
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).
The fact that Posey was housed with federal inmates does not violate the Eighth
Amendment. He does not allege that the presence of the federal inmates resulted in pervasive
violence at the Jail that subjected him to a substantial risk of serious harm and that any named

Defendant knew of and disregarded such a risk. Hester v. Morgan, 52 F. App’x 220, 223 (6th Cir.
2002) (“The mere fact that [the prison] housed some violent prisoners or that violence among the
inmates would sometimes occur does not establish an Eighth Amendment violation.”). Posey also
fails to allege that any named Defendant should have been aware of a reasonable likelihood of an
attack by the specific inmate who assaulted Posey and had the opportunity to intervene earlier.
Posey seeks his release onto parole or a transfer to another facility. As noted above, he has
no right to a transfer to another facility. Nor does he have a right to be released on parole before
his sentence has ended. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7
(1979); Inmates of Orient Correctional Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235

(6th Cir. 1991). Even if he did have such a right, this Court may order the state to transfer Posey
only in extreme circumstances, which he has not alleged, e.g. Walker v. Lockhart, 713 F. 2d 1378,
1383 (8th Cir. 1983); Streeter v. Hopper, 618 F. 2d 1178, 1182 (5th Cir. 1980), and the Court has
no authority to order his release to parole, Kimberlin v. White, 798 F. Supp. 472, 476–77 (W.D.
Tenn. 1992), aff’d, 7 F.3d 527 (6th Cir. 1993).
For the foregoing reasons, the complaint does not state a claim for relief and is subject to
dismissal.
The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint
to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944, 951 (6th
Cir. 2013); see also Brown v. R.I., 511 F. App’x 4, 5 (1st Cir. 2013) (per curiam) (“Ordinarily,
before dismissal for failure to state a claim is ordered, some form of notice and an opportunity to
cure the deficiencies in the complaint must be afforded.”). Leave to amend is not required where
a deficiency cannot be cured. Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree
with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged

by amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, the Court finds that Posey should be given an opportunity to amend his complaint.
In conclusion, Posey’s complaint is DISMISSED 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). Leave to amend,
however, is GRANTED. Any amendment must be filed within twenty-one (21) days after the date
of this order, on or before November 19, 2019.
Posey is advised that an amended complaint will supersede the original complaint and must
be complete in itself without reference to the prior pleadings. The text of the complaint must allege
sufficient facts to support each claim without reference to any extraneous document. Any exhibits

must be identified by number in the text of the amended complaint and must be attached to the
complaint. All claims alleged in an amended complaint must arise from the facts alleged in the
original complaint. Each claim for relief must be stated in a separate count and must identify each
defendant sued in that count. If Posey fails to file an amended complaint within the time specified,
the Court will assess a strike pursuant to 28 U.S.C. § 1915(g) and enter judgment.
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/10439537. Public record. Not legal advice.