# Elam v. Lake County Sheriff's Department

> District Court, W.D. Tennessee · December 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10439641

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** December 5, 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

GRANVILLE ELAM, )
)
Plaintiff, )
)
VS. ) No. 19-1141-JDT-cgc
)
LAKE COUNTY SHERIFF’S )
DEPARTMENT, ET AL., )
)
Defendants. )

ORDER DISMISSING COMPLAINT AS MOOT
AND GRANTING LEAVE TO AMEND

On July 11, 2019, Plaintiff Granville Elam, who is incarcerated at the Gibson
County Correctional Complex in Trenton, Tennessee, filed a pro se document which was
opened as a civil complaint. (ECF No. 1.) Elam’s complaint concerns events that allegedly
occurred while he was a pretrial detainee at the Lake County Jail in Tiptonville, Tennessee.
(ECF No. 1 at 1-2; ECF No. 1-3.) After Elam submitted the appropriate financial
documents, 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.) The Clerk shall record the Defendants as the Lake
County Sheriff’s Department, and Deputies Keith Ozment and Nathaniel Hayes.
Elam alleges that on August 23, 2018, Deputy Ozment assaulted him while
escorting him from the Lake County Courthouse. (ECF No. 1 at PageID 1.) He alleges
that Ozment choked him while he was handcuffed and wearing shackles on his waist and
legs. (Id.) Deputy Hayes was present, but Elam does not allege that he participated in the
assault. (Id.) Specifically, Elam alleges that one of his wrists was handcuffed to Ozment

and the other wrist was handcuffed to Hayes. (Id. at PageID 2.) Elam alleges that he has
permanent scars on his wrists from the incident. (Id.)
Elam alleges that he twice attempted to grieve the incident using inmate request
forms because “there is not any grievance forms available to inmates incarcerated at Lake
County Sheriff’s Department.” (Id.) He states he also made “two or three verbal attempts

to have action taken.” (Id.)
Elam does not specify what relief he seeks in this lawsuit. However, he does seek
a temporary restraining order (TRO) against Deputy Ozment. (Id. at PageID 3.) Elam
contends that he “ha[s] reason to fear for my life.” (Id.) Elam says that, even after he is
no longer incarcerated, he “still will be in fear due to the deputy possessing legal authority

to harass, intimidate, or even take my life by means of anger in my filing of the
administrative grievance complaint” and this lawsuit. (Id.) He asserts that a TRO is
necessary for him “to have any mental peace of mind and faith in the legal authorities that
are to uphold the law and not break or violate it.” (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))).
The Court construes Elam’s filing as an action brought 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).
The Lake County Sheriff’s Department is not an entity subject to suit under § 1983.
See Jones v. Union Cnty., Tennessee, 296 F.3d 417, 421 (6th Cir. 2002) (citing Matthews
v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)). Elam’s allegations are construed as claims
against Lake County, which may be held liable only if Elam’s injuries were sustained
pursuant to an unconstitutional custom or policy. See Monell v. Dep’t. of Soc. Serv., 436
U.S. 658, 691-92 (1978). To demonstrate municipal or county 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)).
Elam does not allege that Ozment or Hayes acted pursuant to a Lake County policy
when Ozment assaulted and choked Elam. He therefore does not allege any basis for
holding Lake County responsible for the actions of its employees.
Elam’s allegation that Deputy Ozment assaulted him amounts to a claim of

excessive force. Because Elam was a pretrial detainee at the time of the alleged assault,
his claim must be analyzed under the Fourteenth Amendment’s standard of objective
reasonableness, which “turns on the ‘facts and circumstances of each particular case.’”
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (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.
Elam alleges that, while he was handcuffed and being taken from the courthouse,
Deputy Ozment assaulted and choked him, seemingly without provocation, resistance, or
threat from Elam. The Sixth Circuit has held that the use of force on a handcuffed detainee,
including using a chokehold, is objectively unreasonable under the Fourteenth
Amendment. See Coley v. Lucas Cnty., Ohio, 799 F.3d 530, 541 (6th Cir. 2015) (citing
United States v. Livoti, 196 F.3d 322, 327 (2d Cir. 1999), and Papp v. Snyder, 81 F. Supp.
2d 852, 857 (N.D. Ohio 2000)). Elam’s allegations are sufficient to state a Fourteenth
Amendment claim of excessive force against Deputy Ozment.

Elam, however, does not state a claim against Deputy Hayes. He alleges that he
was handcuffed to both deputies at the time of the assault, but he does not allege that Hayes
participated in the assault. Nor does he allege that Hayes allowed the assault to take place
or encouraged it in any way. Elam merely alleges that Hayes was present.
To the extent he seeks to hold Hayes liable because he did not prevent the attack or

protect Elam from Deputy Ozment, he fails to state a claim. Generally, non-participants in
the use of excessive force may be liable for their failure to intervene only if they “‘observed
or had reason to know that excessive force would be or was being used and had both the
opportunity and the means to prevent the harm from occurring.’” Ondo v. City of
Cleveland, 795 F.3d 597, 611 (6th Cir. 2015) (quoting Burgess v. Fischer, 735 F.3d 462,
475 (6th Cir. 2013) (internal quotation marks omitted)). Hayes, therefore, had a duty to
protect Elam from Ozment’s use of force only if “the ‘underlying episode of excessive
force . . . spanned a sufficient period of time for [him] to both perceive what was happening

and intercede to stop it.’” Kowolonek v. Moore, 463 F. App’x 531, 539 (6th Cir. 2012)
(quoting Ontha v. Rutherford Cnty., 222 F. App’x 498, 506 (6th Cir. 2007)). Elam does
not allege how long Ozment’s attack lasted, but neither does he suggest that it lasted long
enough for Hayes to both perceive the use of force and stop it from occurring. Nor does
Elam allege that Hayes had knowledge ahead of the incident that Ozment would use

excessive force on Elam. He therefore fails to state a basis on which Hayes may be liable
for failing to prevent the attack or protect him from Ozment’s use of force.
Although Elam has sufficiently alleged a Fourteenth Amendment claim against
Deputy Ozment, Elam has not alleged what relief he seeks in this lawsuit. He requests
only a TRO to protect him from Deputy Ozment. However, Elam is no longer in the

custody of the Lake County Sheriff’s Office, where Ozment is employed. Because Elam
is no longer under Ozment’s watch or control, his request for injunctive relief in the form
of a TRO is moot. See Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (claim for
declaratory or injunctive relief is rendered moot by the plaintiff’s transfer to a different
prison facility); Moore v. Curtis, 68 F. App’x 561, 562 (6th Cir. 2003) (claims for

declaratory and injunctive relief against prison and prison staff moot when inmate
transferred to another facility); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (same).
And because Elam sought only injunctive relief in this lawsuit, his entire case has
been mooted by his transfer. See Dotson v. Colson, No. 3:13-CV-0119, 2014 WL 2946455,
at *2 (M.D. Tenn. June 30, 2014); Street v. Rodriguez, 12-13995, 2014 WL 840083, at *4
(E.D. Mich. Mar. 4, 2014) (“Because plaintiff is no longer subject to the care of the official
he claims was denying him his constitutional rights, his request for injunctive relief is

moot. . . . And because plaintiff has sought only injunctive relief, the entire case is moot.”).
The Court therefore must dismiss this case as moot.
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
concludes that Elam should be given the opportunity to file an amended complaint.
In conclusion, the Court DISMISSES Elam’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) and
1915A(b)(1). However, Elam is GRANTED leave to file an amended complaint. Any

amendment must be filed within twenty-one (21) days after the date of this order.
Elam 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 Elam 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/10439641. Public record. Not legal advice.