Ashley v. Genovese

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

TIMOTHY ASHLEY, )

)

Plaintiff, )

)

VS. ) No. 20-1275-JDT-cgc

)

KEVIN GENOVESE, ET AL., )

)

Defendants. )

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

Plaintiff Timothy Ashley, who is incarcerated at the Northwest Correctional

Complex (NWCX) in Tiptonville, Tennessee, filed a pro se civil complaint and a motion

to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court granted leave to proceed in

forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform

Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) Ashley names as Defendants the

NWCX Warden, Kevin Genovese; Gary Holder, Associate Warden of Operations; and

Steve Jones, Associate Warden of Treatment. (ECF No. 1 at PageID 2.) He also attempts

to sue three unidentified “John Doe” correctional officers. All of the Defendants are sued

in their individual capacities. (Id.)

Ashley alleges he was assaulted by Correctional Officer John Doe #2. He states he

had been given a meal with peanut butter, to which he is allergic, so he asked Defendant

John Doe #2 for a substitute meal. (Id. at PageID 3.) Ashley had his hand in the door flap

of his cell at the time. (Id.) John Doe #2 allegedly “became irate and began slamming the

flap down on my arm and using racial expletives to insult me.” (Id.) An African American

officer then approached and told John Doe #2 he would handle the situation. (Id.) Ashley

alleges he did nothing to provoke the assault and states he believes John Doe #2’s actions

were racially motivated because of the racial slurs that were used during the incident. (Id.)

Ashley asked to see a nurse and states “the warden came by with a captain [and] took

photos of my injuries and asked me what took place.” (Id.) He seeks monetary 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.’” Ashley 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.” Ashley, 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))).

Ashley 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).

Though Ashley states he is suing three John Doe Defendants, the complaint contains

no factual allegations against either John Doe #1 or John Doe #3. 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. Ashley thus has no claim against John

Doe #1 or John Doe #3.

The complaint also contains no allegations against Defendants Genovese, Holder,

or Jones. Instead, Ashley presumably sues these Defendants merely because of their

positions as NWCX Wardens. 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.

There must be a showing that the supervisor encouraged the specific incident

of misconduct or in some other way directly participated in it. At a minimum,

a § 1983 plaintiff must show that a supervisory official at least implicitly

authorized, approved or knowingly acquiesced in the unconstitutional

conduct of the offending subordinates.

Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official who is aware of the

unconstitutional conduct of his subordinates but fails to act generally cannot be held liable

in his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);

Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006). Ashley’s complaint does

not allege these Defendants “implicitly authorized, approved, or knowingly acquiesced” in

any unconstitutional conduct of their subordinates.1 Ashley therefore fails to state a claim

against Defendants Genovese, Holder, and Jones.

Ashley’s claim of excessive force against Defendant John Doe #2 arises under the

Eighth Amendment, which prohibits cruel and unusual punishments. See generally Wilson

v. Seiter, 501 U.S. 294 (1991). This proscription encompasses an inmate’s right to personal

safety, including freedom from use of excessive force. Stewart v. Love, 796 F.2d 43, 44

(6th Cir. 1982).

With respect to excessive force claims, the malicious and sadistic use of force to

cause harm violates contemporary standards of decency, regardless of whether or not

significant injury is evident. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (the intentional

use of excessive force by prison guards against an inmate without penological justification

constitutes cruel and unusual punishment in violation of the Eighth Amendment and is

actionable under § 1983). For excessive physical force claims, “the core judicial inquiry

is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7.

An Eighth Amendment claim consists of both objective and subjective components.

Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective component requires that the

deprivation be “sufficiently serious.” Id. A prisoner must show that he “is incarcerated

1 Ashley states only that an unnamed warden came by after the incident to take photos

and asked him what happened. (ECF No. 1 at PageID 3.) Even if this unnamed person was one

of the Warden Defendants, this does not amount to an allegation of wrongdoing that will support

a claim under § 1983 or show the type of personal involvement required for supervisory liability.

under conditions posing a substantial risk of serious harm,” id.; see also Miller v. Calhoun

Cnty., 408 F.3d 803, 812 (6th Cir. 2005), or that he has been deprived of the “minimal

civilized measure of life’s necessities,” Wilson, 501 U.S. at 298 (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)); see also Hadix v. Johnson, 367 F.3d 513, 525 (6th

Cir. 2004). An inmate seeking damages for the use of excessive force need not establish

serious bodily injury to make a claim, but not “every malevolent touch by a prison guard

gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. See also Johnson v.

Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional

rights”)). The Eighth Amendment recognizes “de minimis uses of physical force, provided

that the use of force is not of a sort ‘repugnant to the conscience of mankind.’” Hudson,

503 U.S. at 9-10 (citation and internal quotation marks omitted). “Not ‘every ache and

pain . . . involving some discomfort can support an Eighth Amendment claim.’” Sarah v.

Thompson, 109 F. App’x 770, 771 (6th Cir. 2004) (quoting Gutierrez v. Peters, 111 F.3d

1364, 1372 (7th Cir. 1997)).

The subjective component requires that jail officials acted with requisite intent—

i.e., had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson,

501 U.S. at 302-03 (plaintiffs must show that prison officials acted with “deliberate

indifference” to a substantial risk that the prisoner would suffer serious harm); Dominguez

v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009). “[D]eliberate indifference

describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835.

To be liable under the Eighth Amendment, a prison official must subjectively know of an

excessive risk of harm to an inmate’s health or safety and disregard that risk. Id. at 837.

Though Ashley’s allegation that John Doe #2 slammed his hand in the door flap

after becoming angry likely satisfies the subjective component of an Eighth Amendment

claim, he does not satisfy the objective component. Ashley alleges he asked to see a nurse

after the incident, but he does not actually describe his injuries or state what kind of medical

treatment he required, if any. Thus, he fails to state an Eighth Amendment claim for

excessive force.

To the extent Ashley complains that John Doe #2 used racial epithets during the

incident, he also fails to state an Eighth Amendment claim. Verbal comments, even if

harassing and abusive, do not violate the Eighth Amendment no matter how “shameful and

utterly unprofessional.” Johnson v. Unknown Dellatifa, 357 F.3d 539, 545-46 (6th Cir.

2004) (affirming dismissal for failure to state a claim where plaintiff’s allegations included

continuous insulting remarks by guard); see also Morrison v. Greenwald, No. 3:09-CV-

009, 2010 WL 1253962, at *9 (S.D. Ohio Feb. 24, 2010), report and recommendation

adopted, 2010 WL 1253958 (S.D. Ohio Mar. 23, 2010) (“The Constitution does not protect

inmates (or anyone else) from gross insults by public officials, including prison guards.”).

Even a guard’s verbal threat of assault does not violate a prisoner’s constitutional rights.

Miller v. Wertanen, 109 F. App’x 64, 65 (6th Cir. 2004). Just as the Constitution “does not

mandate comfortable prisons,” Wilson, 501 U.S. at 298, it does not mandate polite prison

guards or officials. “Derogatory or abusive language and conduct do not give rise to a

claim under § 1983.” Meadows v. Gibson, 855 F. Supp. 223, 225 (W.D. Tenn. 1994) (citing

Paul v. Davis, 424 U.S. 693 (1976)).

Ashley also asserts that John Doe #2’s alleged assault was based on Ashley’s race,

which is a claim arising under the Fourteenth Amendment’s Equal Protection clause. “To

state an equal protection claim, a plaintiff must adequately plead that the government

treated the plaintiff ‘disparately as compared to similarly situated persons and that such

disparate treatment either burdens a fundamental right, targets a suspect class, or has no

rational basis.’” Ctr. For Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th

Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter Twp. Of Shelby,

Mich., 470 F.3d 286, 299 (6th Cir. 2006)), overruled on other grounds by Engquist v. Or.

Dep’t of Agric., 553 U.S. 591 (2008).

Ashley does not allege that he was treated differently than similarly situated inmates

of a different race. He alleges only that John Doe #2 used racially derogatory language

during the alleged assault. This does not, by itself, amount to a Fourteenth Amendment

equal protection claim.

Even if Ashley had stated a claim against John Doe #2, service of process cannot be

made on an unidentified party, and the filing of a complaint against an unknown defendant

does not toll the running of the statute of limitation. See Wiggins v. Kimberly-Clark Corp.,

641 F. App’x 545, 548-49 (6th Cir. 2016) (“The Sixth Circuit treats naming a specific

individual in place of a John Doe as joinder of a new party.” (citing Cox v. Treadway, 75

F.3d 230, 240 (6th Cir. 1996))). Before Ashley can proceed against any unnamed

individuals he must first identify the individuals and re-allege his claims against them

within the one-year limitations period set out in Tennessee Code Annotated 28-3-104(a)

(1)(B).

For the foregoing reasons, Ashley’s complaint is subject to dismissal for failure to

state a claim on which relief may be granted.

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 Ashley must be given an opportunity to amend his complaint.

In conclusion, Ashley’s original complaint is DISMISSED for failure to state a

claim pursuant to 28 U.S.C. §§ 1915(e)(2) (B)(ii) and 1915A(b)(1). However, leave to file

an amended complaint is GRANTED.

Any amended complaint must be filed within twenty-one days after the date of

this order, on or before January 7, 2021. Ashley is advised that an amended complaint

will replace the original complaint and must be complete in itself without reference to the

prior pleading. The amended complaint must be signed, and the text of the amended

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 amendment. Each claim for relief must be

stated in a separate count and must identify each Defendant sued in that count. If Ashley

fails to file an amended complaint within the time specified, the Court will dismiss this

case with prejudice 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