Smith v. Hardin County, TN

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

BILLY JOSEPH SMITH, )

)

Plaintiff, )

)

VS. ) No. 20-1072-JDT-cgc

)

HARDIN COUNTY, TENNESSEE, )

ET AL., )

)

Defendants. )

ORDER TO MODIFY THE DOCKET,

DISMISSING COMPLAINT, AND GRANTING LEAVE TO AMEND

On March 17, 2020, Plaintiff Billy Joseph Smith, who is incarcerated at the Hardin

County Correctional Facility in Savannah, Tennessee, filed a pro se complaint under

42 U.S.C. § 1983 and a motion for leave to proceed in forma pauperis in the U.S. District

Court for the Eastern District of Tennessee.1 (ECF Nos. 1 & 2.) Chief U.S. District Judge

Pamela L. Reeves transferred the case to this district, where venue is proper, on March 31,

2020. (ECF Nos. 7 & 8.) On April 1, 2020, this 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. 11.)

1 Smith appears to list his “children & family” as additional plaintiffs. (See ECF No. 2 at

PageID 4.) He does not, however, actually assert any claims on behalf of anyone other than

himself. The Clerk therefore properly recorded Smith as the only Plaintiff in this matter.

Smith sues Hardin County; “Savannah Law Enforcement”; the “Court System”; the

Hardin County Correctional Facility (Jail); Subway; Pizza Hut; “All Dispatch”; “maybe

the court-appointed attorneys, not sure”; “the different people on my booking papers[,]”

affidavit, “warrants[,] and others”; “several police officers”; and “many more” with regard

to events during his incarceration at the Jail since November 2017. (ECF No. 2 at PageID

4, 6 & 7.) The Clerk shall MODIFY the docket to add the following Defendants: attorneys

Ben Harmon and Frankie Stanfill, Judge Daniel L. Smith, Judge Creed McGinley, Jail

Administrator Tracy White, Hardin County Sheriff Johnny Alexander, and Chief Deputy

Mike Fielder.2 (Id. at PageID 6-7.)

Smith’s complaint asserts a litany of complaints relating to the conditions of

confinement at the Jail, his history of criminal charges that he believes are unfounded, and

personal challenges. (See ECF No. 2 at PageID 6 to ECF No. 2-1 at PageID 42.) He seeks

restitution and “computation” (perhaps meaning compensation) “or whatever.” (ECF No.

2 The complaint names these individuals without specifying their positions. However,

“Danny Smith” is likely Hardin County General Sessions Court Judge Daniel L. Smith. See

www.tncourts.gov.court/general-sessions-courts/judges/daniel-l-smith. Creed McGinley is a

Circuit Court Judge for the 24th Judicial District of Tennessee, which includes Hardin County.

See www.tncourts.gov/courts/circuit-criminal-chancery-courts/judges/ charles-creed-mcginley;

see also Tenn. Code Ann. § 16-2-506(24). The full names and current titles of Alexander,

Fielder, and White are found on the Hardin County Sheriff’s Department website. See

www.hardincosheriff.com/our-department/. Ben Harmon is an attorney, see Candidate for

chancellor vows to keep politics out of courtroom, THE COURIER, July 17, 2020,

http://www.courieranywhere.com/2020/07/17/ candidate-for-chancellor-vows-to-keep-politics-

out-of-courtroom/, and likely is/was one of Smith’s defense attorneys. Frankie K. Stanfill is an

Assistant Public Defender. See, e.g., State v. Davis, 2015 WL 5813394 (Tenn. Crim. App. Oct.

5, 2015) (identifying Stanfill as an Assistant Public Defender).

2-1 at PageID 42.) For the reasons explained below, Smith fails to state any claim on which

relief may be granted.

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))).

Plaintiff 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).

Official Capacity Claims against Defendants McGinley, Harmon, and Stanfill: To

the extent Smith intends to sue Judge McGinley and Defendants Harmon and Stanfill for

money damages in their official capacities, the claims are treated as claims against their

employer, 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, 131 S. Ct. 1632, 1638

(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

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

Claims against Hardin County and the Jail and against Sheriff Alexander, Mike

Fielder, and Tracy White in their Official Capacities: Smith names both Hardin County

and the Jail as Defendants. Any claims asserted against the Jail, however, are also

considered claims against Hardin County. See generally Hafer v. Melo, 502 U.S. 21

(1991). Likewise, any claims brought against Defendants Alexander, Fielder, and White

in their official capacities are treated as claims against the County itself. Hardin County,

however, may be held liable only if Smith’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 such municipal 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)). Smith does not allege he has been

deprived of a right because of a Hardin County policy or custom.

Claims against Savannah Law Enforcement and “All Dispatch”: Plaintiff names

Savannah Law Enforcement and “All Dispatch” as Defendants. (ECF No. 2 at PageID 4

& 6.) Governmental departments and divisions are not separate, suable entities. Therefore,

to the extent Smith’s claims against Savannah Law Enforcement and “All Dispatch” are

intended as claims against the Savannah Police Department, the Court construes them as

claims against the City of Savannah. See Hafer, 502 U.S. 21. See also Buffer v. Frazier,

No. 14-2497, 2015 WL 1637915, at *1 n.1 (W.D. Tenn. Apr. 13, 2015). Again, as noted

supra, a local government “cannot be held liable under § 1983 on a respondeat superior

theory.” Monell, 436 U.S. at 691; see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th

Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). Rather, a city’s

liability for constitutional deprivation must be based upon a direct causal link between one

of its policies or customs and the alleged constitutional deprivation. Monell, 436 U.S. at

691-92; Deaton v. Montgomery Co., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). Accord

Alkire, 330 F.3d at 815. Here, the complaint’s disjointed allegations cannot reasonably be

construed as setting forth any municipal policy or custom, let alone one by which Smith

incurred a particular injury.

Furthermore, beyond his failure to allege a municipal policy that worked a

constitutional deprivation upon him, Smith does not identify and name any officers or

dispatch employees of the Savannah Police Department. See generally Iqbal, 556 U.S. at

676 (2009) (“[A § 1983] plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution”). He fails to

state a claim against Savannah Law Enforcement and “All Dispatch” for this additional

reason.

Claims against Subway and Pizza Hut: Smith states that following his release on

bond after being arrested for public intoxication and stalking, he went to Subway to eat,

where the cashier told him “don’t worry about it” and continued to prepare his order even

after he told her he had forgotten his wallet. (ECF No. 2 at PageID 19.) When a different

Subway employee approached while Smith was eating in the restaurant and asked him to

pay, he “made the choice of just leaving and paying for it the next time I was in there.” (Id.

at PageID 20; see also id. at PageID 27.) The following day, police arrived at Smith’s

home to escort him down to stay “a while in jail” and gave him “more bogus ass charges

to make me look like a criminal.” (Id. at PageID 20-21.)

Smith also describes a previous incident that resulted in him being charged with

assault and attempted robbery for paying a Pizza Hut delivery person with a personal

check; the delivery person claimed the check was not good, but Smith asserts it was cashed

by Pizza Hut. (Id. at PageID 21; see also id. at PageID 27.) Smith posted bond for his

release. (Id. at PageID 21.)

“A § 1983 plaintiff may not sue purely 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). Generally, to be considered to have acted “under color of

state law,” an individual must be a state or local government official or employee. A

private party may act under color of state law to establish the first element of this cause of

action only when the party “acted together with or . . . obtained significant aid from state

officials” and did so to such a degree that its actions may properly be characterized as “state

action.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). An individual may also

be considered a state actor if he or she exercises powers traditionally reserved to a state.

Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).

Based on Smith’s allegations here, it strains credulity to consider Subway and Pizza

Hut state actors for § 1983 purposes. He therefore fails to state a claim for relief under

§ 1983 against these two Defendants.

Claims against the “Court System” and Court-Appointed Attorneys: Smith names

the “Court System,” likely a reference to Judges McGinley and Smith, and his “Court-

Appointed Attorneys,” probably meaning Defendants Harmon and Stanfill. (ECF No. 2 at

PageID 4, 6.) In several sections of the complaint, he suggests the crimes for which he

is/was incarcerated relate to drug and weapons possession in November 2017.3 (See, e.g.,

ECF No. 2 at PageID 16-17.) He also sets out in a disjointed manner various other criminal

charges for which he was arrested and/or incarcerated at unspecified times. (Id. at PageID

10 & 16-22.) Smith states he has “spent over a half year for these charges and I am

innocent.” (Id. at PageID 10 & 17 (“I was in the wrong place at the wrong time”).) He

alleges he “didn’t even get to tell my side of the story” in court. (Id. at PageID 15.) Instead,

he accepted a plea deal. (Id. at PageID 18.) After being incarcerated for six months he

was released; thereafter, he was arrested for public intoxication, stalking, and other

charges, but was released on bond. (Id. at PageID 18 & 19.) Smith alleges they “keep

putting my court dates off” with respect to his current charges. (Id. at PageID 10.) After

exhaustive effort however, the Court is unable to reasonably ascertain from the complaint

the chronology of Smith’s criminal history or the various details of the offenses and arrests,

criminal prosecutions, jurisdictions, or attorneys associated with each of the incarcerations

of which he complains.

With regard to any allegations against Defendants McGinley and Smith, Smith does

not have a claim to relief. It is well settled that judges, in the performance of their judicial

functions, are absolutely immune from civil liability. Mireles v. Waco, 502 U.S. 9, 9-10

(1991); Stump v. Sparkman, 435 U.S. 349, 363 (1978); Bright v. Gallia Cnty., Ohio, 753

F.3d 639, 648-49 (6th Cir. 2014); Leech v. DeWeese, 689 F.3d 538, 542 (6th Cir. 2012).

3 The Tennessee Department of Correction website lists Plaintiff as a convicted prisoner

serving a six-year sentence for a drug offense. See www.apps.tn.gov/foil-app/search.jsp.

Whether a judge or other official is entitled to absolute immunity in a given case turns on

a “functional” analysis. Harlow v. Fitzgerald, 457 U.S. 800, 810-11 (1982). The

“touchstone” for applicability of absolute judicial immunity is “performance of the

function of resolving disputes between parties, or of authoritatively adjudicating private

rights.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993). The actions of

McGinley and Smith4 in presiding over various aspects of Smith’s criminal cases were

clearly within the scope of their judicial function, and Smith does not offer any facts to

suggest otherwise. Therefore, Smith’s claims against Judges McGinley and Smith are

barred by judicial immunity.

As to any allegations against his defense attorneys, Defendants Harmon and Stanfill,

Smith also does not have a valid claim. Though attorneys employed as public defenders

are paid by the State, “public defenders do not ‘act under color of state law when

performing a lawyer’s traditional functions as counsel to a defendant in a criminal

proceeding.’” Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 611 (6th

Cir. 2007) (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981)). Moreover, courts

have uniformly held that private attorneys are not state actors who can be sued under

§ 1983. See Polk Cnty., 454 U.S. at 318 (“[A] lawyer representing a client is not, by virtue

of being an officer of the court, a state actor ‘under color of state law’ within the meaning

of § 1983”); Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (private attorney

4 Smith does not actually identify any allegedly unconstitutional actions taken by Judge

McGinley, Judge Smith, or any other judge.

who is appointed by the court does not act under color of state law); Deas v. Potts, 547

F.2d 800 (4th Cir. 1976) (“A private attorney who is retained to represent a criminal

defendant is not acting under color of state law, and therefore is not amenable to suit under

§ 1983”). Therefore, any claims against Smith’s defense attorneys are not a basis for

relief.5

Claims against Johnny Alexander, Tracy White, Mike Fielder, and Other

Unidentified Persons: Though Smith names Jail Administrator White, Sheriff Alexander,

and Chief Deputy Fielder as Defendants, he does not explain how these individuals played

a role in the events described in the complaint or allege any misconduct by them. 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. Instead, these three

Defendants appear to be sued merely because of their supervisory positions. However,

under § 1983, “[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.

5 Again, Smith does not specifically describe any deprivation of his constitutional rights

by any particular attorneys who represented him.

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).

In addition, a supervisor’s failure to take corrective action in response to an inmate

grievance or complaint does not supply the necessary personal involvement for § 1983

liability. See George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“Ruling against a

prisoner on an administrative complaint does not cause or contribute to the [constitutional]

violation. A guard who stands and watches while another guard beats a prisoner violates

the Constitution; a guard who rejects an administrative complaint about a completed act of

misconduct does not.”). Smith does not allege that Defendants Tracy, Alexander or

Fielder, through their own actions, violated his constitutional rights.

Smith’s references to “several police officers” and “many more,” (ECF No. 2 at

PageID 6-7), also fail to state a claim against anyone. See 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)) (complaint making “only categorical references to ‘Defendants’” failed to “‘allege,

with particularity, facts that demonstrate what each defendant did to violate the asserted

constitutional right’”); Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002)

(affirming that, because Plaintiff “failed to allege with any degree of specificity which of

the named defendants were personally involved in or responsible for each of the alleged

violations of his federal rights,” the complaint failed to state a claim for relief). Smith

cannot make claims against a universe of unspecified persons who cannot be notified of

claims against them.

Court Access Claim: Smith states the Jail provides him with “no legal advisor or

counsel to help me decide or understand.” (ECF No. 2 at PageID 8; see also id. at PageID

13.) He also states he “never get[s] to see my lawyer except in the courtroom.” (Id. at

PageID 13; see also id. at PageID 14 (“A court-appointed lawyer tells you to be quiet and

listen to the judge . . . then directly back to the cell without even one word being said by

the lawyer”).) He wants a lawyer “who abide[s] and understand[s] the laws.” (Id. at

PageID 23.) Smith further alleges the Jail lacks a law library. (Id. at PageID 12.)

Prisoners retain a constitutional right of access to the courts. Bounds v. Smith, 430

U.S. 817, 821-22 (1977) (citing Ex Parte Hull, 312 U.S. 546 (1941)). That right “extends

to direct appeals, habeas corpus applications, and civil rights claims only.” Thaddeus-X v.

Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc). To protect this right, prison authorities

must “provid[e] prisoners with adequate law libraries or adequate assistance from persons

trained in the law.” Bounds, 430 U.S. at 828. Appointment of counsel can be a valid means

of fully satisfying the constitutional obligation to provide prisoners, including pretrial

detainees, with access to the courts. See, e.g., Bourdon v. Loughren, 386 F.3d 88 (2d Cir.

2004).

To have standing to pursue a First Amendment claim that he was denied access to

the courts, “a prisoner must show prison officials’ conduct inflicted an ‘actual injury,’ i.e.,

that the conduct hindered his efforts to pursue a nonfrivolous legal claim.” Rodgers v.

Hawley, 14 F. App’x 403, 409 (6th Cir. 2001) (citation omitted); see Thaddeus-X, 175 F.3d

at 394. See also Sampson v. Garrett, 917 F.3d 880, 881 (6th Cir. 2019) (to state a claim

that the defendants interfered with his right to access the court, a plaintiff must “show that

the defendants have scuttled his pursuit of a ‘nonfrivolous, arguable’ claim” (quoting

Christopher v. Harbury, 536 U.S. 403, 415 (2002))). The Supreme Court has held “the

underlying cause of action . . . is an element that must be described in the complaint, just

as much as allegations must describe the official acts frustrating the litigation.”

Christopher, 536 U.S. at 415. An actual injury is shown only where a nonfrivolous,

arguable claim is lost. Id. “Like any other element of an access claim, the underlying

cause of action and its lost remedy must be addressed by allegations in the complaint

sufficient to give fair notice to a defendant.” Christopher, 536 U.S. at 416.

“The tools [Bounds] requires to be provided are those that the inmates need in order

to attack their sentences, directly or collaterally, and in order to challenge the conditions of

their confinement.” Lewis, 518 U.S. at 355. “Impairment of any other litigating capacity

is simply one of the incidental (and perfectly constitutional) consequences of conviction

and incarceration.” Id. (emphasis in original). A plaintiff’s right of access to the courts

with regard to his criminal case is therefore satisfied if he had the assistance of counsel for

his criminal trial. See United States v. Manthey, 92 F. App’x 291, 297 (6th Cir. 2004)

(citing United States v. Smith, 907 F.2d 42, 44 (6th Cir. 1990)).

In this case, Smith does not sufficiently plead the requisite constitutional showing.

Smith makes contentions about not being “offered a law library,” (ECF No. 2 at

PageID 7), not having “law books,” (id. at PageID 11), and not having “news media,” (id.

at PageID 8). But he does not state that lack of a library hindered his efforts to pursue a

nonfrivolous legal claim. That is, he does not describe or otherwise address the underlying

cause of action in which his putative lost remedy was frustrated by not having a library or

news media. In any event, Smith’s acknowledgment that he had appointed counsel in his

criminal cases, (id. at PageID 4), belies his claim that he was denied meaningful access to

the courts in those proceedings. As federal courts have routinely recognized, appointment

of counsel satisfies any obligation which a state has to provide inmates with legal assistance

in their criminal cases. See, e.g., Manthey, 92 F. App’x at 297; Bourdon, 386 F.3d 88;

Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir. 1987); Smith v. Cnty. of Santa Clara, 223

F. App’x 701 (9th Cir. 2007) (pretrial detainee’s access to court-appointed counsel satisfied

right to meaningful access to the courts, even if the law library available to him in the

county jail was inadequate).

As to his contention about speaking with his counsel only at court hearings, (ECF

No. 2 at PageID 13), Smith’s allegations are similarly deficient. He does not contend that

the lack of more in depth and lengthy communications with counsel in fact hindered his

efforts to pursue a nonfrivolous legal claim. Moreover, he does not even identify the

underlying nonfrivolous cause of action that was frustrated by not having unfettered access

to appointed counsel.6 Nor does he describe causally-related actual injury from it. His

allegations merely show his displeasure with the criminal justice system.

6 To the extent Smith seeks to raise constitutional claims of ineffective assistance of

counsel, such claims may be raised only in post-conviction or habeas corpus proceedings, not in

a § 1983 action.

For all of these reasons, the complaint fails to state a claim for deprivation of the

constitutional right of access to the courts.

No Access to Recreation: Smith alleges he is given “no outside recreation.” (ECF

No. 2 at PageID 8; see id. at PageID 11.) This allegation amounts to a claim under the

Eighth Amendment’s prohibition on cruel and unusual punishments. See generally Wilson

v. Seiter, 501 U.S. 294 (1991). 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 v. Gamble, 429 U.S. 97, 103-04 (1976). The Sixth Circuit has

recognized that prisoners are entitled to outdoor recreation sufficient to maintain

reasonably good physical and mental health. See Walker v. Mintzes, 771 F.2d 920, 927

(6th Cir. 1985). Other courts in this circuit, however, have recognized that “there is no

applicable precedent requiring any minimum amount of outdoor recreation for prisoners.”

Kizer v. Robertson Cnty., No. 3:17-cv-00715, 2018 WL 2164557, at *1 (M.D. Tenn. May

10, 2018) (citing Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003)). The Sixth

Circuit has held only that “a total or near-total deprivation of exercise or recreational

opportunity, without penological justification, violates Eighth Amendment guarantees.”

Rodgers v. Jabe, 43 F.3d 1082, 1086 (6th Cir. 1995) (quoting Patterson v. Mintzes, 717

F.2d 284, 289 (6th Cir. 1983)). Smith offers no facts regarding the duration of the alleged

deprivation of recreation. Thus, he has not sufficiently alleged a total or near-total

deprivation. He simply states in a conclusory manner that he has “no outside recreation

period” at the Jail. (ECF No. 2 at PageID 8; see id. at PageID 11.) Accordingly, he fails

to state a claim for relief.

Excessive Force: Smith alleges, in conclusory fashion, “use of excessive force.”

(ECF No. 2 at PageID 25.) “[T]he unnecessary and wanton infliction of pain . . . constitutes

cruel and unusual punishment forbidden by the Eighth Amendment.” Hudson v.

McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

Establishing an Eighth Amendment claim of excessive force requires a showing that (1)

“the alleged wrongdoing was 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 Seiter, 501 U.S. at 298, 303). 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.” Id. at 6 (citing Whitley, 475 U.S. at 320-21).

Smith states he was pepper-sprayed because he was “kicking the door in the holding

cell, (ECF No. 2 at PageID 19), and the Jail staff did “not like the noise I was making.”

(Id. at PageID 25.) He states he “nearly died” because he had no water to wash his eyes

out but does not elaborate further on any actual injury. (Id. at PageID 19.) Smith also does

not identify the date this occurred, who supposedly sprayed him, or other details. Despite

the hyperbolic assertion that Smith “nearly died,” there is nothing in the complaint from

which the Court can plausibly infer either that the pepper-spraying was objectively harmful

enough to establish a constitutional violation or that the involved officials acted with a

culpable state of mind.

Smith also refers to unidentified police using a taser gun on him when they came to

his home after the Subway incident. He states that they tasered him “twice in my own

home because I said I’d rather go to hell or be shot than go down to the jail with them.”

(Id.) Even construing Smith’s allegations generously, his own statement suggests the

police used the taser because he was resisting arrest, which he now denies. (Id.) There is

simply nothing in the complaint suggesting Smith can establish either the objective or the

subjective prong of an excessive force claim.

Smith therefore fails to sufficiently plead a plausible claim for excessive force.

Inadequate Medical Care Claim: Smith states he is “not getting the correct medical

treatment” and has “no visits to my social workers.” (ECF No. 2 at PageID 8.) The

complaint suggests that his claims arise from not receiving mental health medications. (Id.

at PageID 11 (“They will not give me any of my medicines . . . for my bipolar mood swings,

depression, schizophrenia, or anything”); see also id. at PageID 22.)

Claims regarding the denial of medical care are also reviewed under the Eighth

Amendment, which prohibits cruel and unusual punishments. See generally Seiter, 501

U.S. at 297. Under Estelle, 429 U.S. at 104, “deliberate indifference to serious medical

needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain” ... proscribed

by the Eighth Amendment.” However, not “every claim by a prisoner that he has not

received adequate medical treatment states a violation of the Eighth Amendment.” Id. at

105. To state a cognizable claim, “a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs.” Id. at 106.

That is, an Eighth Amendment claim consists of both objective and subjective

components. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson, 503 U.S. at 8; Wilson,

501 U.S. at 298. The objective component requires that a prisoner have a serious medical

need. Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004); Brooks v. Celeste,

39 F.3d 125, 128 (6th Cir. 1994). “[A] medical need is objectively serious if it is ‘one that

has been diagnosed by a physician as mandating treatment or one that is so obvious that

even a lay person would readily recognize the necessity for a doctor’s attention.’”

Blackmore, 390 F.3d at 897; see also Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005).

The subjective component requires that jail officials acted with the requisite intent—i.e.,

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

A prison official cannot be found liable under the Eighth Amendment unless he

subjectively knows of an excessive risk of harm to an inmate’s health or safety and

disregards that risk. Id. at 837.

Smith insufficiently alleges facts demonstrating any serious medical need. He does

not describe symptoms, dates of duration, prior treatments, or other features of his putative

condition(s). He simply offers his conclusory, blanket assertions that he suffers from

various mental illnesses. Furthermore, he has not demonstrated that any specific Jail

personnel had a “sufficiently culpable state of mind” and acted with “deliberate

indifference” to his condition(s). Instead, he simply states that he has not received mental

health medication. (ECF No. 2 at PageID 8, 11 & 22.) This contention does not satisfy

the subjective prong of Eighth Amendment analysis. He does not demonstrate any

Defendant’s subjective knowledge, and disregard, of an excessive risk of harm to his

health. Having failed to meet both the objective and subjective components of an Eighth

Amendment claim, he fails to state a claim for constitutionally inadequate medical care.

Claims Regarding Grievance Procedure: Smith suggests the grievance process at

the Jail is inadequate. (See ECF No. 2 at PageID 5-6 (he received a grievance response

that the Jail “will check on it”).) He does not allege any arbitrary denial of access to the

Jail’s grievance procedure.

Prisoners do not possess a constitutional right to a prison grievance procedure. See

Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002); LaFlame v. Montgomery Cnty.

Sheriff’s Dep’t, 3 F. App’x 346, 348 (6th Cir. 2001) (holding that plaintiff’s allegation that

jail staff ignored the grievances he filed did not state a § 1983 claim “because there is no

inherent constitutional right to an effective prison grievance procedure”). Furthermore, a

failure to take corrective action in response to an inmate grievance does not supply the

necessary personal involvement for § 1983 liability. See Simpson v. Overton, 79 F. App’x

117, 120 (6th Cir. 2003); George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“Ruling

against a prisoner on an administrative complaint does not cause or contribute to the

[constitutional] violation.”). Smith’s contentions regarding his grievances fail to state a

claim for relief.

General Conditions of Confinement Claims: Smith alleges a barrage of cursory and

conclusory allegations concerning many conditions of confinement at the Jail. None state

a claim for relief.

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, 452 U.S. at 347; Estelle, 429 U.S. at 103-04. A

prisoner must allege “extreme deprivations . . . to make out a conditions-of-confinement

claim.” Hudson, 503 U.S. at 8-9. In considering the types of conditions that constitute a

substantial risk of serious harm, the Court evaluates not only the seriousness of the potential

harm and the likelihood that the harm will actually occur, but whether unwilling exposure

to that risk violates contemporary standards of decency, i.e., that society does not choose

to tolerate the risk in its prisons. Helling v. McKinney, 509 U.S. 25, 36 (1993). The

Supreme Court has also emphasized that prisoners can rarely establish an Eighth

Amendment violation from a combination of conditions of confinement that, in themselves,

do not rise to the level of a constitutional violation:

Some conditions of confinement may establish an Eighth Amendment

violation “in combination” when each would not do so alone, but only when

they have a mutually enforcing effect that produces the deprivation of a

single, identifiable human need such as food, warmth, or exercise—for

example, a low cell temperature at night combined with a failure to issue

blankets. To say that some prison conditions may interact in this fashion is

a far cry from saying that all prison conditions are a seamless web for Eighth

Amendment purposes. Nothing as amorphous as “overall conditions” can

rise to the level of cruel and unusual punishment when no specific

deprivation of a single human need exists.

Wilson, 501 U.S. at 304-05 (citation omitted).

First, Smith states he has “no access to any food besides what they feed us. Not

enough for [a] 220 lb man.” (ECF No. 2 at PageID 8; see also id. at PageID 11 (“We have

very little to eat. The food is OK though.”), PageID 13 (“It is not enough . . . so I’m always

thinking about food.”).) The Eighth Amendment imposes a duty to “ensure that inmates

receive adequate food” and to protect prisoners from substantial risks to their safety.

Farmer, 511 U.S. at 832 & 844. Smith does not meet his pleading burden here. He admits

he receives oatmeal for breakfast with a “biscuit sometimes 2 eggs or gravy and a milk.”

(ECF No. 2 at PageID 12.) He has a main dish at lunch, such as “stroganoff or goolosh

[sic]” with cornbread, vegetables, and dessert. (Id.) Dinner consists of similar courses.

(Id. at PageID 12-13.) Though he would like more to eat, Smith does not allege that his

health has been adversely affected by any lack of food. Accepting his claims as colorable

would require correctional facilities to meet inmates’ every gastronomic demand.

Second, Smith states that inmates at the Jail “only get razors once every 2 weeks

and hygiene every 2 weeks with barely enough soap.” (Id. at PageID 8.) He is also

dissatisfied with the amount of toilet paper at the Jail. He does not describe any associated

injuries or health problems. (Id.) The Sixth Circuit “has concluded that deprivation of a

shower and other personal hygiene items for a ‘brief span of time’ . . . is not actionable

conduct.” Richmond v. Settles, 450 F. App’x 448, 455 (6th Cir. 2011) (quoting Siller v.

Dean, 205 F.3d 1341 (6th Cir. Feb. 1, 2000); see Argue v. Hofmeyer, 80 F. App’x 427,

429-30 (6th Cir. 2003) (citing Sandin v. Conner, 515 U.S. 472, 484-86 (1995), and Moore

v. Chavez, 36 F. App’x 169, 171 (6th Cir. 2002) (inmate who failed to allege “extreme

discomfort” or complete denial of “basic elements of hygiene” did not state Eighth

Amendment claim)). Here, Smith alleges only that the amount and frequency of the

hygiene products provided is not sufficient—not that the Jail is refusing to provide them at

all or that he has been harmed by the lack thereof. He therefore fails to state a claim for

relief.

Third, Smith states that the Jail does not “properly” wash the bathrooms, stating “it

is nasty in here.” (ECF No. 2 at PageID 8.) He also refers to the bathrooms as “molded”

and “half broke.” (Id. at PageID 26.) Smith does not, however, identify any associated

health or hygiene problems. (Id.)

“Exposure to black mold may, in an appropriate case, satisfy the objective

component of an Eighth Amendment violation.” Morales v. White, No. 07-2018-STA-

DKV, 2008 WL 4585340, at *14 (W.D. Tenn. Oct. 10, 2008). Smith, however, does not

allege he suffered injury and harm from being exposed to mold.7 Without that allegation,

Smith affords no basis from which to plausibly infer the objective component of an Eighth

Amendment claim. See, e.g., Morales, 2008 WL 4585340, at *14. Moreover, he does not

allege that any Defendant was actually aware of mold conditions that posed an excessive

risk to his health and did nothing about them. Not having alleged any Defendant’s personal

involvement in any failure to clean the bathrooms, Smith also does not meet the subjective

component of an Eighth Amendment claim for exposure to black mold.

7 Smith does not actually identify the mold as toxic black mold instead of a less harmful

type.

Smith criticizes numerous other aspects of his confinement at the Jail, including:

(1) there is “no news media or access to any reading material or games of any sort,” (ECF

No. 2 at PageID 8); (2) there is “no television or anything really!” (id.; see also id. at

PageID 12 (“We have nothing to do”)); (3) the amount of pens and writing paper provided

to inmates, (id. at PageID 8, 12, 15 & 26); (4) the manner in which inmates’ clothes are

washed, (id. at PageID 8); (5) lack of entertainment, (id. at PageID 11, 12 & 26 (“[There

is] nothing in . . . the dayroom . . . except a deck of cards . . . There is nothing to do except

lay there and look at a tan brick wall”; and (6) regulations against smoking in the Jail. (Id.

at PageID 11.)

These conditions that Smith describes do not amount to unconstitutional deprivation

of human needs. Rather, they are ordinary discomfort from the reality of prison life. The

Constitution “does not mandate comfortable prisons.” Wilson, 501 U.S. at 298; Rhodes,

452 U.S. at 348. He fails to state a claim for relief on these matters.

Other Claims: At one point in his complaint, Smith asserts there is “[n]o seperation

[sic] of state and county” at the Jail. (ECF No. 2 at PageID 8.) He does not explain what

he means by this allegation, but it is possible he is asserting the Jail does not separate

pretrial detainees (“county”), from convicted inmates (“state”). If that is the case, he has

no valid claim. Smith does not allege that housing these groups of inmates together makes

the Jail inherently more dangerous or that he has been harmed in any manner as a result of

the failure to separate pretrial detainees and convicted inmates.

Smith also alleges there is no separation of “church and state” at the Jail. (Id. at

PageID 26.) Perhaps this is merely an error and he again meant to write “county and state.”

If Smith is, however, attempting to allege a lack of separation of “church and state,” he

offers no explanation and the Court will not speculate on the basis of any such claim. This

bare allegation also fails.

Claims arising outside the limitations period: As noted, Smith does not specify the

time periods pertinent to his many allegations. He has been confined at the Jail off and on

since November 2017. (See id. at PageID 16-23.) The limitations period for § 1983 actions

arising in Tennessee is the one-year limitations provision found in Tenn. Code Ann. § 28-

3-104(a)(1)(B). Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). Accordingly,

to the extent one or more of the complaint’s claims arose more than one year before March

12, 2020—i.e., the date he last signed his complaint, (ECF No. 2 at PageID 24),8 those

claims may be barred by the statute of limitations.

For all of the foregoing reasons, Smith’s complaint is subject to dismissal for failure

to state a claim.

Opportunity to amend complaint: 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

8 Smith signed parts of the complaint on March 3, 2020, (see ECF No. 2 at PageID 21;

ECF No. 2-1 at PageID 42), but one portion was signed later, on March 12th. (See ECF No. 2 at

PageID 24.)

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 Smith should be given an opportunity to file an

amended complaint.

In conclusion, the Court DISMISSES Smith’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, Smith is GRANTED leave to file an amended complaint. Any

amendment must be filed within 21 days, on or before March 1, 2021.

Smith is advised that an amended complaint will replace the original complaint and

must be complete in itself without reference to the prior pleadings. The amended complaint

must be signed, must adequately identify all Defendants sued, and 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 Smith 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