# Davis v. CoreCivic

> District Court, W.D. Tennessee · December 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10439667

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** December 6, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10439667

## How later opinions describe it (automated extraction)

- concluding that thirty-six-hour exposure to non-working toilets and “other inmates’ urine and feces via the standing water” was sufficiently serious to satisfy objective component of Eighth Amendment claim

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

VELVED DAVIS, )
)
Plaintiff, )
)
VS. ) No. 19-1246-JDT-cgc
)
CORECIVIC, ET AL., )
)
Defendants. )

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On October 15, 2019, Plaintiff Velved Davis, who is incarcerated at the Morgan
County Correctional Complex in Wartburg, Tennessee, filed a pro se complaint pursuant
to 42 U.S.C. § 1983. (ECF No. 1.) The complaint concerns events that allegedly occurred
while Davis was incarcerated at the Hardeman County Correctional Facility (HCCF) in
Whiteville, Tennessee. (Id. at PageID 2.) After Davis submitted the necessary 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. 4.) The Clerk shall record the Defendants as CoreCivic and
Correctional Officers First Name Unknown (FNU) Tuggle and Gable.
Davis alleges that on June 25, 2019, Officers Tuggle and Gable forced him into a
cell that was flooded from a broken sprinkler head. (ECF No. 1 at PageID 4.) Davis alleges
that he previously had been housed in the cell, where the sprinkler head was “pop[p]ed”
and “still running water.” (Id.) He alleges that the conditions were unchanged when the
officers returned him to the cell. (Id.) Davis asserts that the officers “used excessive force
while [I] was in restraints” and forced him into the “inhabitual [sic] cell as a form of

punishment.” (Id.) Davis alleges that he grieved the incident, which the grievance
committee determined was grievable. (Id.) He seeks unspecified compensation. (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))).
Davis 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).
Davis sues CoreCivic, a private company that “performs the traditional state
function of operating a prison [and therefore] acts under color of state law for purposes of
§ 1983.”1 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 CoreCivic, Davis “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). Davis, however, does not allege anything about CoreCivic, much less that one of
its policies of customs was the moving force behind the alleged violation of his rights. He
therefore fails to state a claim against CoreCivic.
Davis alleges that Officers Tuggle and Gable “used excessive force” when placing

him back into the flooded cell. The Eighth Amendment protects a convicted inmate from
cruel and unusual punishments, including “the unnecessary and wanton infliction of pain.”
See Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S. 312,
319 (1986)); Wilson v. Seiter, 501 U.S. 294 (1991). Establishing an Eighth Amendment
claim of excessive force requires a showing that (1) “the alleged wrongdoing was

1 See https://www.tn.gov/correction/sp/state-prison-list/hardeman-county-correctional-
facility.html (“Hardeman County Correctional Facility is owned by the Hardeman County
Correctional Facilities Corporation, which contracts with CoreCivic for management of the
prison.”).
objectively ‘harmful enough’ to establish a constitutional violation,” and (2) “‘the officials
act[ed] with a sufficiently culpable state of mind.’” Hudson, 503 U.S. at 8 (quoting Wilson,
501 U.S. at 298, 303). Davis, however, does not describe the officers’ actions that he

contends constituted excessive force. He merely concludes that they used excessive force
on him. That contention alone does not satisfy the pleading standard and fails to state a
claim under the Eighth Amendment. See Twombly, 550 U.S. at 555 (“[A] plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels
and conclusions . . . .”).

Davis contends that his placement in the flooded cell also violated his Eighth
Amendment rights. The conditions of a prisoner’s confinement may be considered cruel
and unusual when they deprive inmates of “the minimal civilized measure of life’s
necessities as measured by a contemporary standard of decency.” Dellis v. Corr. Corp. of
Am., 257 F.3d 508, 511 (6th Cir. 2001); see Rhodes v. Chapman, 452 U.S. 337, 347 (1981);

Estelle, 429 U.S. at 103-04. 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 Sixth Circuit has noted that, in conditions-of-confinement claims, “the length
of exposure to the conditions is often paramount.” Lamb v. Howe, 677 F. App’x 204, 209
(6th Cir. 2017) (citing DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)). The Lamb

Court concluded that the plaintiff’s exposure to human waste for four hours was “a
temporary inconvenience that, while serious, did not last so long as to create conditions
that fall below ‘the minimal civilized measure of life’s necessities.’” Id. (quoting Dellis,
257 F.3d at 511); cf. Gallant v. Holdren, No. 1:16-CV-383, 2019 WL 1370121, at *6,
report and recommendation adopted by No. 1:16CV383, 2019 WL 1368329 (S.D. Ohio
Mar. 26, 2019), appeal dismissed, No. 19-3176, 2019 WL 4267744 (6th Cir. Mar. 29,
2019) (finding that plaintiff’s forced exposure to sewage overflow in cell unit for 16 hours

did not constitute Eighth Amendment violation.); Wiley v. Kentucky Dep’t of Corr., No.
CIV.A. 11-97-HRW, 2012 WL 5878678, at *5 (E.D. Ky. Nov. 21, 2012) (concluding that
inmate’s “alleged exposure to the overflowing toilet and resulting odors, while no doubt
unpleasant, was of short duration—one day—and did not amount to an Eighth Amendment
violation”). On the other hand, the Sixth Circuit has concluded that a prisoner who was

forced to live in a cell covered in fecal matter for three days sufficiently stated an Eighth
Amendment claim. Taylor v. Larson, 505 F. App’x 475, 477 (6th Cir. 2012); cf. DeSpain,
264 F.3d at 974 (concluding that thirty-six-hour exposure to non-working toilets and “other
inmates’ urine and feces via the standing water” was sufficiently serious to satisfy objective
component of Eighth Amendment claim).

Davis does not allege how long he was forced to stay in the flooded cell. He alleges
that he was in the cell for an undisclosed amount of time while it was flooded, taken from
the cell for an unspecified reason, and then returned to same cell by Officers Tuggle and
Gable. He does not allege how long he remained in that cell or if he still is being forced to
stay there. Because it is not clear from these allegations how long Davis was forced to

remain in the flooded cell, the Court cannot conclude whether he has properly pleaded an
Eighth Amendment claim. The Court, however, will allow Davis an opportunity to amend
his complaint to clarify his allegations. See 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.”).
In conclusion, the Court DISMISSES Davis’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). The Court, however, GRANTS him leave to amend his complaint. Any
amendment must be filed within twenty-one (21) days after the date of this order, on or
before December 27, 2019.
Davis 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 Davis fails to file an amended complaint within the time specified, the Court will
dismiss the case in its entirety, 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10439667. Public record. Not legal advice.