Masciarella v. Newhouse

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

WAYNE GARY MASCIARELLA, )

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Plaintiff, )

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VS. ) No. 20-1206-JDT-cgc

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OFFICER NEWHOUSE, ET AL., )

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Defendants. )

ORDER DENYING MOTION TO APPOINT COUNSEL,

DISMISSING COMPLAINT, AND GRANTING LEAVE TO AMEND

On September 14, 2020, Plaintiff Wayne Gary Masciarella, who is confined at the

Northeast Correctional Complex in Mountain City, Tennessee, filed a pro se complaint

pursuant to 42 U.S.C. § 1983, a motion to proceed in forma pauperis, and a motion to

appoint counsel. (ECF Nos. 1, 2, & 3.) The Court granted pauper status and assessed the

civil filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-

(b). (ECF No. 5.) The complaint assert claims for failure to protect and deprivation of

medical care arising from events that occurred at the Whiteville Correctional Facility

(WCF) in Whiteville, Tennessee, where Masciarella was previously incarcerated. He

names the following Defendants: Correctional Officer (C/O) First Name Unknown (FNU)

Newhouse; Lieutenant (Lt.) Kevin Scott; Lt. FNU Killingsworth; S/S Trina Neal;1 Chief

of Security FNU Ester; and CoreCivic, the private company that manages the WCF.2

Masciarella alleges that on September 21, 2019, at approximately 11:25 p.m., a

fellow inmate “reached through his unsecured pie flap” and grabbed Defendant

Newhouse’s security keys off his belt. (ECF No. 1-1 at PageID 15.) Instead of calling for

assistance in retrieving his keys, Newhouse “instantly” fled the area, leaving the pod

unattended. (Id.) The inmate who stole the keys reached through his pie flap and unlocked

his own cell door, then exited and began unlocking all the other cell doors. (Id.) “A small

riot occur[red] of about 10 inmates.” (Id.) Masciarella states an inmate unlocked his cell

“against my wishes,” and three other inmates forced Masciarella to exit “because they

wanted to fight my cellmate.” (Id.) While outside his cell, Masciarella was “attacked and

beaten” by three inmates as Defendants Newhouse, Scott, Neal, and Ester, allegedly “sat

in the control room and outside the pod and unit.” (Id.) He alleges the assault finally

stopped when another inmate “yelled ‘stop your [sic] gonna kill him.’” (Id.) Twenty

minutes later, Scott and C/O Taylor3 “came in with pepperball guns and locked everybody

down.” (Id.)

1 Masciarella does not explain what “S/S” stands for, but it is likely an abbreviation for

Shift Sergeant or Shift Supervisor.

2 The WCF is part of the Tennessee Department of Correction system, but “is . . .

managed by CoreCivic, a private corrections management firm.” See www.tn.gov/correction/sp-

state-prison-list/whiteville-correctional-facility.html.

3 Taylor is not named as a defendant.

After the incident, Masciarella asked Scott for medical attention, who in turn asked

Nurse Drummit, who is not named as a defendant, to examine him. (Id.) Drummit did so

through the cell door and allegedly told Scott that Masciarella needed to be escorted to

medical for “stitches, x-rays, and further medical attention.” (Id.) Because he was under

close-custody status, Masciarella was required to be handcuffed and escorted by two staff

members whenever he left his cell. (Id.) Scott went to retrieve handcuffs and to find

another staff member to help with the transport to medical, but he never returned and

“ignored all attempts to reach him on the radio by other C.O.s trying to reach him

concerning an escort to medical.” (Id.)

After shift change the following day, September 22, 2019, Masciarella “pleaded

with” Killingsworth for medical care. (Id.) At Killingsworth’s request, Nurse Powers,

who also is not named as a defendant, evaluated Masciarella, again through his cell door.

(Id.) Nurse Powers also told Killingsworth that Masciarella needed to be escorted to

medical for stitches and x-rays “because I was in a bad condition and possibly had a broken

nose and concussion” and “a large and deep laceration on my nose.” (Id.) Despite

Powers’s recommendations, he “was again refused medical [care].” (Id.) Masciarella

alleges he “constantly called over the emergency speaker for days trying to seek medical

attention[.] I layed in my cell for days bleeding from my nose and mouth with lump and

cuts on my head so large and painful I couldn’t lay my head down[.]” (Id. at PageID 14.)

He further alleges that “every time I moved my head for a week I would feel dizzy and

confused for a moment[,] a headache so bad I thought my brain was swelling up[.] I was

afraid to fall asleep afraid I wouldn’t wake up.” (Id.)

Masciarella states “it took me 4 days” to finally be escorted to medical, where a

nurse there told him “there was nothing she could do medically” except make a “body

sheet” record of his “4 day old injuries” and set him an appointment to see the doctor the

next day, September 24, 2019. (Id. at PageID 16.) WCF personnel, however, failed to

escort him to medical for that scheduled appointment. (Id.) On September 26, 2019,

Masciarella was escorted to medical based on a sick-call he had placed three months prior

regarding an ear infection. (Id.) At that time, the nurse spent less than ten minutes with

Masciarella, supposedly because he demanded to see the doctor and complained about

never receiving care for the injuries he sustained in the attack. (Id.) The nurse prescribed

eardrops, but Masciarella alleges he “was still never treated for my injuries.” (Id.)

Masciarella seeks “actual and punitive damages to be determined at trial.” (ECF

No. 1 at PageID 5.)

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))).

Masciarella 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).

Claims Against CoreCivic and Official Capacity Claims: Masciarella does not state

a claim against CoreCivic or against the WCF Defendants in their official capacities.4 “A

private corporation that performs the traditional state function of operating a prison acts

under color of state law for purposes of § 1983.” 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 that 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). CoreCivic “cannot be held

liable under a theory of respondeat superior.” Braswell v. Corr. Corp. of Am., 419 F. App’x

622, 627 (6th Cir. 2011). To prevail on a § 1983 claim against CoreCivic, Masciarella

“must show that a policy or well-settled custom of the company was the ‘moving force’

behind the alleged deprivation” of his rights. Id.

4 Claims against the WCF Defendants in their official capacities are treated as claims

against their employer, CoreCivic.

Masciarella does not allege the Defendants deprived him of constitutional rights

based on an unconstitutional policy or custom of CoreCivic and therefore fails to state any

claim against CoreCivic or against the WCF employee Defendants in their official

capacities.

Claims for Failure to Protect: The Eighth Amendment protects prisoners from

“cruel and unusual punishment,” Farmer v. Brennan, 511 U.S. 825, 832 (1994), including

the right to be free “from violence at the hands of other prisoners.” Bishop v. Hackel, 636

F.3d 757, 766 (6th Cir. 2011) (quoting Farmer, 511 U.S. at 833); see also Wilson v. Yaklich,

148 F.3d 596, 600 (6th Cir. 1998) (explaining that the Eighth Amendment imposes on

prison officials “an affirmative duty to protect inmates from violence perpetrated by other

prisoners”). Accordingly, the Constitution requires prison officials to “take reasonable

measures to guarantee the safety of the inmates.” Farmer, 511 U.S. at 832 (quoting Hudson

v. Palmer, 468 U.S. 517, 526-27 (1984)).

A failure-to-protect claim has objective and subjective components. For the

objective prong, a plaintiff must demonstrate that “he is incarcerated under conditions

posing a substantial risk of serious harm.” Bishop, 636 F.3d at 766 (quoting Farmer, 511

U.S. at 833). For the subjective prong, a plaintiff must allege that a prison official “acted

with ‘deliberate indifference’ to inmate health or safety,” id. (quoting Farmer, 511 U.S. at

834), meaning the official “kn[ew] of and disregard[ed]” the excessive risk of harm. Id. at

766-67 (quoting Farmer, 511 U.S. at 837); see also Richko v. Wayne Cnty., 819 F.3d 907,

915 (6th Cir. 2016) (citing Rouster v. Cnty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)).

It is not enough that the official “should have perceived” a significant risk, “but did not.”

Farmer, 511 U.S. at 838. An official’s state of mind must be “more blameworthy than

negligence” before liability will attach. Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.

1997) (quoting Farmer, 511 U.S. at 835). In analyzing the subjective component, courts

must consider each defendant’s knowledge individually. See Bishop, 636 F.3d at 767

(citing Phillips v. Roane Cnty., 534 F.3d 531, 542 (6th Cir. 2008) and Garretson v. City of

Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005)).

As to the objective prong of his claim, Masciarella does not offer facts alleging that

he was “incarcerated under conditions posing a substantial risk of serious harm” on

September 21, 2019. See Bishop, 636 F.3d at 766. Certainly, being attacked without

provocation in prison—such as Masciarella describes—is not “part of the penalty that

criminal offenders pay for their offenses against society.” See Farmer, 511 U.S. at 834

(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). However, the complaint states

that Newhouse’s security keys were spontaneously stolen by a nefarious fellow inmate.

The complaint does not allege any preexisting substantial risks of the theft or the ensuing

harm to Masciarella. For example, Masciarella does not suggest the theft occurred because

of Newhouse’s inattentiveness. He also does not assert that keys had been stolen from

officers in the same way before such that Newhouse or any other Defendant would have

known there was a risk it would happen again and result in violence. In sum, Masciarella

does not sufficiently allege that conditions at the WCF posed a substantial risk of serious

harm to him in September 2019.

As to the subjective prong, Masciarella does not offer facts showing that any

Defendants subjectively knew of, and chose to be deliberately indifferent to, a significant

risk of harm to him from the incident. Although Newhouse, Scott, Neal, and Ester knew

the “small riot” was happening because they observed it from the control room and/or

adjacent area (see ECF No. 1-1 at PageID 15), Masciarella does not allege they knew or

should have known three of the inmate-rioters would specifically attack him in the process.

Indeed, he insinuates that Newhouse fled just before the altercation started in the interests

of self-preservation (see id.) — not in deliberate indifference to the risk Masciarella would

be harmed. In fact, the complaint may be reasonably construed as suggesting that

Newhouse departed in order to alert other WCF personnel of the security breach.

Additionally, merely because the Defendants “kn[ew] of” the incident from the control

room and nearby area does not demonstrate they were “disregard[ing] it.” See Bishop, 636

F.3d at 766-67 (quoting Farmer, 511 U.S. at 837). To the contrary, the complaint’s

allegation that officers entered the pod with chemical agents to lock down the area (ECF

No. 1-1 at PageID 15 (“pepperball guns”)) suggests the Defendants were mobilizing to

quell the disturbance, not merely watching it unfold. Furthermore, Masciarella does not

allege that intervention was safely possible before officers arrived with the chemical

agents. The Court is not in the position to second-guess the split-second judgment calls of

correctional officers on the rapidly-evolving, fast-paced, and emotionally-charged scene of

an inmate altercation.5

5 See, e.g., Graham v. Connor, 490 U.S. 386, 396 (1989)) (noting, in the Fourth

Amendment context, that “officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving.”)

In sum, there is no plausible allegation in the complaint that any specific Defendant

particularly knew of, encouraged, or turned a blind eye to a significant risk Masciarella

would be harmed during the incident. Masciarella thus fails to state an Eighth Amendment

claim for failure to protect against any Defendant.

Claims for Denial of Medical Care: The Court also reviews claims regarding the

denial of medical care under the Eighth Amendment. Under Estelle v. Gamble, 429 U.S.

97, 104 (1976), “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.

The objective component of an Eighth Amendment medical care claim 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 again requires a showing that prison officials acted with

deliberate indifference. Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 302-03; Dominguez

v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009). Prison officials cannot be found

liable under the Eighth Amendment unless they subjectively know of an excessive risk of

harm to an inmate’s health or safety and disregard it. Farmer, 511 U.S. at 837.

As to the objective component, the Court will presume, only for purposes of this

order, that Masciarella’s allegations of black and swollen eyes, lumps and lacerations on

his head and face, a split lip, broken nose, “deep lacerations on my nose and lip so deep it

needed stitches,” and a headache with dizziness and confusion that lasted a week amounted

to an objectively serious medical need. (See ECF No. 1-1 at PageID 15; ECF No. 1 at

PageID 5.)

As to the subjective component, Masciarella does not demonstrate that either Scott

or Killingsworth acted with unconstitutional “deliberate indifference” to his injuries.

Rather, the circumstances outlined in his complaint portray a fast-paced situation that posed

danger to both WCF staff and inmates; even so, Scott summoned a nurse to evaluate

Masciarella. Though Nurse Drummit allegedly told Scott that Masciarella needed medical

attention as soon as possible, there is no allegation Scott was aware that failure to

immediately provide such medical care would pose a substantial risk of serious harm.

There also is no allegation that Scott’s failure to return to transport Masciarella to the

medical department was due to deliberate indifference rather than to negligence or the

requirements of his other duties with regard to the ongoing situation. By Masciarella’s

own admission, the WCF staff was busy implementing safety lockdowns and security

procedures.

Similarly, notwithstanding that Nurse Powers told Killingsworth the next morning

that Masciarella needed medical attention as soon as possible, there is no allegation

Killingsworth was aware that failure to provide immediate medical care would pose an

excessive risk of harm. Masciarella also does not assert that Killingsworth actually refused

to take him to medical or that, if he did specifically refuse, whether he gave any reason for

the refusal. Nor does Masciarella state that Killingsworth agreed to take him for medical

treatment but ultimately did not do so. Masciarella appears to merely presume, from the

fact Killingsworth did not act immediately, that he was acting unconstitutionally. 6

Without more, Masciarella’s dissatisfaction with the timing and nature of his

medical attention is insufficient to plausibly infer that Scott or Killingsworth, or any other

WCF employee, denied him medical care with a “sufficiently culpable state of mind.”

Therefore, Masciarella fails to state an Eighth Amendment claim for lack of medical care.

Motion to Appoint Counsel: In Masciarella’s motion for appointment of counsel,

he states that he needs an attorney because he is indigent. (ECF No. 3 at PageID 48.)

Pursuant to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent any

person unable to afford counsel.” However, “[t]he appointment of counsel in a civil

proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.

2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs

6 Masciarella’s allegations as to when he actually was taken to the medical department

are not consistent. He alleges “it took me 4 days to finally get escorted to medical.” (Id. at

PageID 16.) He also alleges, however, that when he was “finally” taken to medical the nurse

could do nothing for his “4 day old injuries” but made him an appointment to see the doctor the

“next day” on September 24, 2019. (Id.) So it appears he was actually taken to medical on

September 23rd. That would have been less than forty-eight hours after the attack and his

request to Scott for medical treatment, which allegedly occurred just before midnight on

September 21st, and approximately twenty-four hours after requesting medical attention from

Killingsworth on the morning of September 22nd. (Id. at PageID 14-15.)

were not entitled to have counsel appointed because this is a civil lawsuit.”); Lavado v.

Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel in a civil

case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no constitutional or .

. . statutory right to counsel in federal civil cases . . . .”). Appointment of counsel is “a

privilege that is justified only by exceptional circumstances.” Lavado, 992 F.2d at 606

(internal quotation marks and citation omitted).

The mere fact that Masciarella cannot afford to hire an attorney is not the type of

exceptional circumstance that warrants the appointment of counsel in a civil case. The

motion for appointment of counsel is therefore DENIED at this time. Masciarella may re-

file the motion in the future if this case ultimately is allowed to proceed.

Opportunity to Amend: 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 Masciarella should be given the opportunity to

amend his complaint.

Conclusion: In conclusion, the Court DISMISSES Masciarella’s complaint for

failure to state a claim on which relief can be granted, pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(i)-(ii) and 1915A (b)(1). Leave to amend, however, is GRANTED.

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

order, on or before April 29, 2021. Masciarella 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. 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 Masciarella fails to file an amended

complaint within the time specified, the Court will dismiss the 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